Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and: (i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents; (ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement; (iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance; (vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus; (vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference); (ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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; (x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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; (xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System; (xii) 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; (xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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; (xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person; (xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and (xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities. (b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement. (c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other 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. (a) In connection with the Registration and/or sale of Registrable Securities Company's registration obligations pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 3 hereof, the Company shall will use reasonable its best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(ia) prepare and file with the required SEC, as soon as practicable, a Registration StatementStatement or Registration Statements on any appropriate form under the Securities Act, including 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 exhibits and financial statements required under by the Securities Act 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 with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) the Company will 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 prepared proposed to be filed, which documents will be subject to the reasonable review of such underwriters holders and such participating Holders and their respective counselunderwriters, and (B) consider in good faith the Company will not file any comments Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the underwriters and Holders and their respective counsel on Registrable Securities covered by such documentsRegistration Statement or the underwriters, if any, shall reasonably object;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such the 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 effective in accordance with have been sold; cause the terms of this Agreement 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 Shares Registered thereonRegistrable 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;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A1) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, (C3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D4) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (o) below cease to be true and correct in all material respectscorrect, and (E5) 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 and (v6) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which makes any statement made in the applicable Registration Statement or Statement, the Prospectus included or any document incorporated therein by reference untrue or which requires the making of any changes in such the Registration Statement (as then Statement, the Prospectus or any document incorporated therein by reference in effect) contains any untrue statement of a material fact or omits to state a material fact necessary order to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible moment;
(viie) 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, if any, underwriters and the Holders may reasonably request to holders of a majority of the Registrable Securities being sold agree should be included therein in order relating to permit the intended method 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 SecuritiesSecurities 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;
(viiif) furnish to each selling Holder holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy 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);
(ixg) deliver to each selling Holder holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use of such the Prospectus or any amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the 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;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, 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 each state and other jurisdiction of the United States such jurisdictions as any selling Holder seller or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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;
(xii) in connection cooperate with any sale the selling holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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;
(xiiik) 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 applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Depositary 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;
(xivn) 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 case Purchase Agreement; (2) obtain opinions of an Underwritten Offeringcounsel 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 for delivery to "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling Holders holders of Registrable Securities and the underwriter or underwriters, an opinion from the Company’s outside counsel if any, such letters to be in customary form and content for 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 Underwritten Offering, dated Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the date 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 underwriting agreementextent required thereunder;
(xvo) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in the case of an Underwritten Offeringany disposition pursuant to such registration, obtain for delivery to and addressed to the underwriter any attorney or underwriters and, to the extent agreed accountant retained by the Company’s independent certified public accountantssellers or underwriter, each selling Holderall financial and other records, a comfort letter from pertinent corporate documents and properties of the Company’s independent certified public accountants (, and cause the independent certified public accountants with respect Company's officers, directors and employees to supply all information reasonably requested by any acquired company financial statements) in customary form and content for the type of Underwritten Offeringsuch representative, including with comfort letters customarily delivered underwriter, attorney or accountant in connection with quarterly period financial statements if applicablesuch registration; provided that any records, dated information or documents that are designated by the date Company in writing as confidential shall be kept confidential by such Persons unless disclosure of execution of the underwriting agreement and brought down to the closing under the underwriting agreementsuch records, information or documents is required by court or administrative order;
(xvip) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC 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 statements satisfying the provisions of Section 11(a) of the Securities Act and Act, no later than 45 days after the rules and regulations promulgated thereunder and covering end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the period end of at least 12 monthsany fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, but or (2) if not more than 18 monthssold 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
(xviiq) 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period promptly prior to the filing of such 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 upon reasonable notice at reasonable times for discussion of such document and for reasonable periods for inspection by the parties referred to make such changes in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available such document prior to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and filing thereof as counsel for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter selling holders or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps may reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the request. The Company may require each Holder seller of Registrable Securities 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 of Registrable Securities agrees by acquisition of 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 this Agreement.
(c) Each Holder agrees, Registrable Securities that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v)6(k) hereof, 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 2.04(a)(v)6(k) hereof, or until such Holder 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 's expense) all copies, other ththan 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 Registration and/or sale of Whenever Shareholders request that any Registrable Securities be registered pursuant to this AgreementSection 5.01 or 5.02, through an Underwritten Offering or otherwisesubject to the provisions of such Sections, the Company shall use its reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof as quickly as practicable, and, in connection with any such request:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) The Company shall as expeditiously as possible prepare and file with the SEC such amendments a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and supplements which form shall be available for the sale of the Registrable Securities to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective registered thereunder in accordance with the terms intended method of this Agreement distribution thereof, and use its reasonable best efforts to cause such filed registration statement to become 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 or prospectus or any amendment or supplement thereto, the Company shall, if requested, furnish to each participating Shareholder 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 Shareholder and underwriter, 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 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 facilitate the disposition of the Registrable Securities owned by such 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 statements therein not misleading.
(c) After the filing of the registration statement, the Company shall (i) 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, (ii) comply with the provisions of the Securities Act with respect to the disposition of all of Registrable Securities covered by such registration statement during the Shares Registered thereon;
(iii) applicable period in the case of a Shelf Registration, prepare and file accordance 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 intended methods of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment Registering Shareholders thereof set forth in such registration statement or supplement to such Prospectus has been filed, prospectus and (Biii) promptly notify each Registering Shareholder holding Registrable Securities covered by such registration statement of any written comments stop order issued or threatened by the SEC or any request by state securities commission and take all reasonable actions required to prevent the SEC or any other Governmental Authority for amendments or supplements to entry of such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;remove it if entered.
(vd) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the The Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent (i) register or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of qualify the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and registration statement under 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of such jurisdictions in the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register Registering Shareholder holding such Registrable Securities reasonably (in light of such denominations Shareholder’s intended plan of distribution) requests and (ii) cause such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or underwriters, if any, such Shareholder to consummate the disposition of such Registrable Securities;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; owned by such Shareholder, provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use 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 The Depository Trust Company’s Direct Registration System;process in any such jurisdiction.
(xive) in The Company shall immediately notify each Registering Shareholder holding such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the case Securities Act, of the occurrence of an Underwritten event requiring the 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 not misleading and promptly prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment.
(i) 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 which underwriter or underwriters may include an Affiliate of an Institutional Shareholder and (ii) the Company shall select an underwriter or underwriters in connection with any other Public Offering. In connection with any Public Offering, obtain for delivery the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take such all other actions 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 addressed substance reasonably satisfactory to the selling Holders Company, the Company shall make available for inspection by any Registering Shareholder and any underwriter participating in any disposition pursuant to a registration statement being filed by the Company pursuant to this Section 5.04 and any attorney, accountant or other professional retained by any such Shareholder 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 underwritersdesirable to enable them to exercise their due diligence responsibility, an opinion from and cause the Company’s outside counsel officers, directors and employees to supply all information reasonably requested by any Inspectors in customary form connection with such registration statement. Records that the Company determines, in good faith, to be confidential and content that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (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. 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 type Company Securities unless and until such information is made generally available to the public. Each Registering Shareholder further agrees that, upon learning that disclosure of Underwritten Offeringsuch Records is sought in a court of competent jurisdiction, dated it shall give notice to the date Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the closing under the underwriting agreement;Records deemed confidential.
(xvh) in the case of an Underwritten OfferingThe Company shall furnish to each Registering Shareholder and to each such underwriter, obtain for delivery to and if any, a signed counterpart, addressed to the underwriter such Shareholder or underwriters andunderwriter, of (i) an opinion or opinions of counsel to the extent agreed by the Company’s independent certified public accountants, each selling Holder, Company and (ii) a comfort letter or comfort letters from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) accountants, each in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution covering such matters of the underwriting agreement and brought down to kind customarily covered by opinions or comfort letters, as the closing under case may be, as a majority of such Shareholders or the underwriting agreement;managing underwriter therefor reasonably requests.
(xvii) The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC SEC, and make generally available to its security holders, as soon as reasonably practicable, but no later than 90 days after the end an earnings statement or such other document covering a period of the 12-month period twelve months, beginning with the first day of the Company’s first quarter commencing within three months after the effective date of the applicable Registration Statementregistration statement, an which earnings statement satisfying shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(j) The Company may require each such Registering Shareholder promptly to furnish in writing to the rules Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and regulations promulgated thereunder and such other information as may be legally required in connection with such registration.
(k) Each such Registering Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.04(e), such Shareholder shall forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.04(e), and, if so directed by the Company, such Shareholder shall deliver to the Company all copies, other than any permanent file copies then in such Shareholder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. If the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 5.04(a)) by the number of at least 12 months, but not more than 18 months, beginning with days during the first month after period from and including the effective date of the Registration Statement;giving of notice pursuant to Section 5.04(e) to the date when the Company shall make available to such Shareholder a prospectus supplemented or amended to conform with the requirements of Section 5.04(e).
(xviil) 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 any of the Registrable Securities are then listed or traded.
(m) The Company shall have appropriate officers of the 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 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 the applicable Registration Statement a 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesregistration statement.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Ntelos Holdings Corp), Shareholders Agreement (Ntelos Holdings Corp)
Registration Procedures. (a) In connection with the Registration and/or sale of Whenever any Holder has requested that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts its Required Efforts to effect or cause the Registration and the sale registration of such Registrable Securities and in furtherance thereof the Company shall:
(a) prepare and file with the Commission on any appropriate form under the Securities Act with respect to such Registrable Securities and use 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); (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 any amendment thereto and, as promptly as possible, provide the Holders true and complete copies of all correspondence from and to the 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 the Registration Statement during the applicable period in accordance with the intended methods of disposition thereof and:set forth in the Registration Statement as so amended or in such Prospectus as so supplemented;
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the Holders of Registrable Securities to be sold, their counsel and any managing underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such underwriters Holders, their counsel and such participating Holders and their respective counselmanaging underwriters, and (Bii) consider cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in good faith any comments the reasonable opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act;
(d) notify the Holders of Registrable Securities to be sold, their counsel and any managing underwriters as promptly as possible and Holders and their respective counsel on confirm such documentsnotice in writing no later than one Business Day following the day:
(i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed;
(ii) prepare and file with when the SEC such amendments and supplements to Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Prospectus used Commission comments in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending writing on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (Aiii) when the applicable Registration Statement or any post-effective amendment thereto has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, ;
(Biv) of any written comments by the SEC or any request by the SEC Commission or any other Governmental Authority Federal or state governmental authority for amendments or supplements to such the Registration Statement or such Prospectus or for additional information, ;
(Cv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or any order preventing or suspending all of the use of any preliminary or final Prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for such purposes, that purpose;
(Dvi) if, at when any time, of the representations and warranties of the Company contained in any applicable agreement (including any underwriting agreement agreement) contemplated hereby shall cease to be true and correct in all material respects, and ;
(Evii) 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 offering or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding Proceeding for such purpose;; and
(vviii) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of which the applicable Registration Statement or the Prospectus included in such Registration Statement (Prospectus, as then in effect) contains the case may be, it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made, not misleading;
(e) not misleading use all Required Efforts to avoid the issuance of, 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 andissued, 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any preliminary or final Prospectusof the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(viif) if reasonably requested by any managing underwriter, if any Registrable Securities are to be sold in connection with an Underwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriters, if any, and the Holders may Company reasonably request to agrees should be included therein in order to permit the intended method of distribution of the Registrable Securities; and (ii) thereafter make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified 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;
(viiig) furnish to each selling Holder of Registrable Securities to be sold, their counsel and each underwriter, if anyany managing underwriters, without charge, as many at least one conformed copies as such Holder or underwriter may reasonably request copy of the applicable each Registration Statement and any amendment or 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;
(ixh) promptly deliver to each selling Holder of Registrable Securities to be sold, their counsel, and each underwriter, if anyany underwriters, without charge, as many copies of the applicable Prospectus or Prospectuses (including each preliminary form of Prospectus) and any each amendment or supplement thereto as such Holder or underwriter persons may reasonably request (it being understood that request; and the Company hereby consents to the use of such Prospectus or any and each amendment or supplement thereto by each of the selling Holder stockholders and the underwriters, if any, any underwriters in connection with the offering and sale of the Registrable Securities covered by such Prospectus or and 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;
(xi) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts Required Efforts to register or qualify, and qualify or cooperate with each the selling HolderHolders, the managing underwriter or underwriters, if any, any underwriters and their respective counsel, 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 each state and other jurisdiction of such jurisdictions within the United States as any selling Holder or managing underwriter requests in writing, to keep each such registration or underwriters, if any, qualification (or their respective counsel reasonably request in writing 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 reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or 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;
(xij) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each the selling Holder Holders and the any managing underwriter or 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 Securities Act legends; , and to register enable such Registrable Securities to be in such denominations and registered in such names as any such selling Holder managing underwriters or the underwriter(s), if any, stockholders may request at least two Business Days prior to such any sale of Registrable Securities; 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;
(xiik) cooperate upon the occurrence of any event contemplated by Section 5(d)(viii) of this Agreement, as promptly as possible, prepare a supplement or 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, and assist in any filings file all other required documents so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be made with stated therein or necessary to make the FINRA and each securities exchangestatements therein, if any, on which any in light of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on circumstances under which any of the Company’s securities are then quotedthey were made, and in the performance of any due diligence investigation by any underwriter not misleading;
(including any “qualified independent underwriter”l) that is required to be retained in accordance with the rules and regulations of each such exchange, and use its reasonable best efforts Required Efforts to cause the all Registrable Securities covered by the applicable relating to such Registration Statement to be registered with listed on the securities exchange, quotation system, market or approved over-the-counter bulletin board on which similar securities issued by the Company are then listed;
(m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other governmental agencies actions in connection therewith (including those reasonably requested by any managing underwriters in order to expedite or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate facilitate the disposition of such Registrable Securities, and those reasonably requested by the selling Holders whether or not an underwriting agreement is entered into):
(i) make such representations and warranties to such selling Holders and such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xivii) in the case of an Underwritten Offering, obtain for delivery and deliver copies thereof to the managing underwriters, if any, of opinions of counsel to the Company and updates thereof addressed to each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and counsel to the selling Holders stockholders covering the matters customarily covered in opinions requested in Underwritten Offerings and the underwriter or such other matters as may be reasonably requested by such counsel and 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;
(xviii) 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 for delivery to and addressed deliver copies to the underwriter or underwriters andselling Holders and the managing underwriters, to the extent agreed by the Company’s independent certified public accountantsif any, each selling Holder, a comfort letter of "cold comfort" letters and updates thereof from the Company’s independent certified public accountants (and the independent certified public accountants with respect to of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired company financial statements) in customary form and content by the Company for the type of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period which financial statements if applicableand financial data is, dated the date of execution of the underwriting agreement and brought down or is required to the 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 holdersbe, 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 included in the Registration Statement;
(xvii) provide ), addressed to each selling Holder 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwriters, if any, in form and substance as are customary in connection with Underwritten Offerings;
(iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters than those set forth in Section 9 of this Agreement (or such other provisions and procedures acceptable to the managing underwriters and such selling Holders); and
(v) deliver such documents and certificates as may be reasonably requested by the selling Holders, their counsel and any managing underwriters to evidence the continued validity of the Registrable Securities representations and warranties made pursuant to be Registered, clause (Ci) above and to evidence compliance with any customary conditions contained in the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant underwriting agreement or other agent or representative retained agreement entered into by such 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(sCompany;
(n) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to selling Holders, any representative of such Holders, any underwriter participating in (A) through (E) aboveany disposition of Registrable Securities, and any attorney or accountant retained by such selling Holder or underwriters, at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Companyand its subsidiaries, and cause the Company’s officers, directors, agents and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and its subsidiaries to supply all information available to the Company in each case reasonably requested by any such Person Holder, representative, underwriter, attorney or accountant in connection with such the Registration Statement as shall be necessary to enable them to exercise their due diligence responsibilityStatement; provided, subject to the foregoinghowever, provided that any such 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 that is determined in good faith by the Company to be confidential, and of which determination a confidential nature at the time of delivery of such Person is notifiedinformation (A) shall be kept confidential by such persons, unless (xi) the release disclosure of such information is required by law court or regulation administrative order or is requested or necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such person, is required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, law; (yiii) such information is becomes generally available to the public other than as a result of a disclosure or becomes publicly known without a breach of this Agreement, failure to safeguard by such person; or (Fiv) such information is or becomes available to such Person on a non-confidential basis person from a source other than the Company or (z) and such information source is independently developed not known by such Personperson 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;
(xxo) comply in all material respects with all applicable rules and regulations of the Commission and make generally available to cause its security holders earnings statements satisfying the executive officers provisions of Section 11(a) of the Securities Act and Rule 158 not 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 after the effective date of the Registration Statement, which statement shall conform 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; andrequirements of Rule 158;
(xxip) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each selling Holder as to which any Registration is being effected to furnish to the Company such information regarding such Holder and the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities as is required by law to be disclosed in the Registration Statement, and other matters as the Company may exclude from time to time reasonably request in writing. Each such registration the Registrable Securities of any such selling Holder agrees 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 Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Holder agrees, that, upon receipt holder of any written notice from the Company securities of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, then such Holder will deliver 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 Company Registration Statement filed or prepared subsequent to the time that such reference ceases to be required; and
(at the Company’s expenseq) all copies, other thnot file a Registration Statement pursuant to 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. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts If and whenever Constar is required to effect or cause the Registration and the sale registration of such any Registrable Securities under the Securities Act as provided in accordance with the intended methods of disposition thereof andthis Agreement, Constar will, as expeditiously as reasonably possible:
(ia) prepare and file with the required Registration Statement, including all exhibits and financial statements required under the Securities Act Commission a registration statement with respect to be filed therewithsuch Registrable Securities, and before filing use its best efforts to cause such registration statement to become 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 Constar may discontinue, in accordance with Sections 3 or 4 hereof, as the SEC a case may be, any registration of its securities which is being effected pursuant to Sections 3 or 4 hereof at any time prior to the effective date of the registration statement relating thereto, and provided, further, that Constar shall not file any Registration Statement pursuant to Sections 3 or Prospectus, 4 or any amendments amendment thereto or supplements thereto, any Prospectus or any supplement thereto (Aincluding such documents incorporated by reference) furnish to which any Participating Holder or the underwriters, if any, and to the Holders participating shall reasonably object in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments light of the underwriters and Holders and their respective counsel on such documentsrequirements of the Securities Act or any other applicable laws or regulations;
(iii) except in the case of a Demand Registration on a Shelf Registration Statement, prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 180 days or such shorter period which will terminate when all Registrable Securities covered by such registration statement have been sold (but not before the expiration of the 90-day period referred to in accordance with Section 4(3) of the terms of this Agreement Securities Act and to Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the Shares Registered thereonParticipating Holders thereof set forth in such registration statement;
(iiiii) in the case of a Demand Registration on a Shelf RegistrationRegistration Statement, prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 24 months or such shorter period which will terminate when all Registrable Securities covered by such registration statement have been sold (but not before the expiration of the 90-day period referred to in Section 4(3) of the Securities Act and to Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a securities covered by such registration statement during such period ending on in accordance with the 3rd anniversary after intended methods of disposition by the effective date of Participating Holders thereof set forth in such Registration Statementregistration statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiic) furnish to each selling Holder the Participating Holders and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)) and a reasonable number of conformed copies of all such documents;
(ixd) 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 underwritercase including all exhibits), if any, without charge, as many such number of copies of the applicable Prospectus prospectus included in such registration statement (including each preliminary Prospectus) prospectus and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if anysummary prospectus), in connection conformity with the offering and sale requirements of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) Act, and such other documents as such selling a Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriterseller;
(xe) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale covered by such registration statement under the such other securities or “blue sky” sky laws of each state and other jurisdiction of the United States such jurisdictions as any selling a Participating Holder or managing underwriter or underwritersshall request, if any, or their respective counsel reasonably request in writing and do any and all other acts or and things reasonably which may be necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as enable the Participating Holders to permit consummate the continuance of sales and dealings disposition 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 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 taxation or 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;
(xif) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiig) cooperate and assist in immediately notify each seller of any filings Registrable Securities covered by such registration statement, at any time when the registration statement is required to be made with kept effective under clause (b) of this Section 4, of Constar becoming aware that the FINRA 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 (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 so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(h) 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 exchangeexchange on which the Common Stock is then listed or NASDAQ if the Common Stock is then quoted on NASDAQ, if any, on which any of the Company’s securities such Registrable Securities are then not already so listed or quoted and on each inter-dealer quotation system on which any if such listing is then permitted under the rules of the Company’s securities are then quotedsuch exchange or NASDAQ, and in the performance of any due diligence investigation by any underwriter (including any “qualified provide an independent underwriter”) that is required to be retained in accordance with the rules transfer agent and regulations of each registrar for 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;
(xiii) registration statement not later than the effective date of the applicable Registration Statement, such registration statement;
(j) provide a CUSIP number transfer agent and registrar for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration SystemSecurities;
(xivk) in the case of an Underwritten Offeringfurnish each Participating Holder a signed counterpart, obtain for delivery to and addressed to the selling Holders such seller (and the underwriter or underwriters, if any) of:
(i) an opinion from of counsel for Constar, dated the Company’s outside counsel in customary form and content for the type effective date of Underwritten Offeringsuch registration statement (or, if such registration involves an underwritten public offering, dated the date of the closing under the underwriting agreement;), reasonably satisfactory in form and substance to each Participating Holder and the managing underwriter, if any; and
(xvii) in a “comfort” letter, dated the case effective date of such registration statement (or, if such registration involves an Underwritten Offering, obtain for delivery to and addressed to the underwriter or underwriters and, to the extent agreed by the Company’s independent certified underwritten 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 with quarterly period financial statements if applicableoffering, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts ), signed by the independent public accountants who have certified Constar’s financial statements included in such registration statement, covering such matters with respect to comply with all applicable rules and regulations such registration statement as are customarily covered in accountants’ letters delivered to the underwriters in underwritten offerings of the SEC and make generally available to its security holders, securities as soon as may 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 be requested by Holder 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)managing underwriter, if any; and
(l) make available for inspection by each Participating Holder, of the Registrable Securities by any underwriter participating in any disposition to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for effected pursuant to such underwriters or agent, registration statement and (E) by any attorney, accountant or other agent or representative retained by such any Participating Holder or any such underwriterunderwriter (individually, as selected by such Holderan “Inspector” and collectively, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above“Inspectors”), 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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement Constar as shall be reasonably necessary to enable them to exercise their due diligence responsibilityresponsibilities (collectively, subject the “Records”), and cause all of Constar’s officers, directors and employees to the foregoingsupply all information reasonably requested by any Participating Holder or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any such Person gaining access to Participating Holder agrees that non-public 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 obtained by it as a result of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (y) such information is or becomes publicly known without a breach Inspections shall be deemed confidential and acknowledges its obligations under the Federal securities laws not to trade any securities of this Agreement, (F) such information is or becomes available to such Person Constar on a the basis of material non-confidential basis from a source other than the Company or (z) such information is independently developed by such Personpublic information;
(xxm) enter into a customary underwriting agreement if such registration is to cause the executive officers be underwritten;
(n) otherwise use its best efforts to comply with all applicable rules and regulations of the Company SEC, and make generally available to participate 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 (1) commencing at the end of any fiscal quarter in the customary “road show” presentations that may be reasonably requested by the managing underwriter or which Registrable Securities are sold to underwriters in any Underwritten Offering and otherwise to facilitate, cooperate witha firm or best efforts underwriting offering, and participate in each proposed offering contemplated herein and customary selling efforts related thereto(2) beginning with the first month of Constar’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(xxio) take all such other customary reasonable steps reasonably that are necessary or advisable to effect permit the Registration, offering and sale of the such Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each such Participating 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company Constar of the occurrence happening of any event of the kind described in clause (g) of this Section 2.04(a)(v)5, such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registration Statement Registrable Securities until such Participating Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (g) of this Section 2.04(a)(v)5, or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumedand, and if so directed by the CompanyConstar, such Participating Holder will deliver to the Company Constar (at the CompanyConstar’s expense) all copies, other ththan permanent file copies then in such Participating Holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of Constar’s notice. In the event Constar shall give any such notice, the periods mentioned in clause (b) of this Section 5 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to clause (g) of this Section 5 to the date when such Participating Holder shall have received the copies of the supplemented or amended prospectus contemplated by clause (g) of this Section 5.
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 Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviiixvii) 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 Class A Shares are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s Common Stock Class A Shares are then quoted, including the filing of any required supplemental listing application;
(xixxviii) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix2.04(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 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 or (z) such information is independently developed by such Person;
(xxxix) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxixx) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, agrees that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other ththan 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 period during which the 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 to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v) or 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. (a) In connection with Whenever the Registration and/or sale holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use commercially reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall as expeditiously as possible:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 5.1 prepare and file with the SEC Commission a registration statement and such amendments and supplements as may be necessary with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective;
5.2 notify each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than 120 days (or until the distribution described in the registration statement has been completed) (or, in the case of a Shelf Registration, a period ending on the earlier of (i) the date on which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or have otherwise ceased to be Registrable Securities, and (ii) the 24-month anniversary of the effective in accordance with the terms date of this Agreement such Shelf Registration) and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) securities covered by such registration statement during such period in the case of a Shelf Registration, prepare and file accordance 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 intended methods of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effectivesellers thereof set forth in such registration statement; provided, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filedhowever, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, that at any time, upon written notice to the representations participating holders of Registrable Securities and warranties for a period not to exceed forty-five (45) days thereafter (the “Suspension Period”), the Company may suspend the use or effectiveness of any registration statement (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 in any applicable underwriting agreement cease to be true and correct in all material respects, and may extend the Suspension Period for an additional consecutive thirty (E30) days with the consent of the receipt by the Company holders of any notification with respect to the suspension of the qualification at least a majority of the Registrable Securities for offering or sale proposed to be sold by the holders participating in any jurisdiction or such offering. If so directed by the initiation or threatening Company, the holders of any proceeding for Registrable Securities shall use their commercially reasonable efforts to deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such purposeholders’ possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice;
(v) promptly notify 5.3 furnish to each selling Holder seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus prospectus included in such Registration Statement (as then in effect) contains any untrue registration statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoprospectus) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, 5.4 use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” sky laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing such jurisdictions and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 or otherwise be required to take any action which would qualify but for this subsection, (b) subject it itself to taxation in any such jurisdiction or (c) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(xi) in connection with any sale 5.5 promptly notify each seller of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with 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, at the request of any such seller, the Company shall prepare a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the sellers 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 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 selling Holder 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;
5.6 cause all such Registrable Securities to be listed on each securities exchange and/or quotation system on which similar securities issued by the Company are then listed and/or quoted;
5.7 provide a transfer agent and registrar for all such Registrable Securities not later than the managing underwriter or effective date of such registration statement;
5.8 enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the underwriters, if any, reasonably request in order to expedite or facilitate the timely preparation and delivery disposition of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder (including effecting a stock split or the underwriter(sa combination of shares), if any, may request at least two Business Days prior to such sale ;
5.9 make available for inspection by any seller of Registrable Securities; provided that , 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 may satisfy its obligations hereunder without issuing physical stock certificates through Company, and cause the use of The Depository Trust Company’s Direct Registration Systemofficers, 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;
(xii) cooperate 5.10 otherwise use commercially reasonable efforts to comply with all applicable rules and assist in any filings required regulations of the Commission, and make available to be made its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the FINRA and each securities exchange, if any, on which any first day of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any first full calendar quarter after the effective date of the Company’s securities are then quotedregistration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
5.11 in the performance event of the issuance of any due diligence investigation by stop order suspending the effectiveness of a registration statement, or of any underwriter (including order suspending or preventing the use of any “qualified independent underwriter”) that is required to be retained related prospectus or suspending the qualification of any Common Stock included in accordance with such registration statement for sale in any jurisdiction, the rules and regulations of each such exchange, and Company shall use its commercially reasonable best efforts promptly to obtain the withdrawal of such order; and
5.12 use its commercially reasonable 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 3 contracts
Sources: Registration Rights Agreement (Cargill Inc), Merger Agreement (Imc Global Inc), Registration Rights Agreement (Imc Global Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Whenever any Registrable Securities are to be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable its best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall have the following obligations:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) The Company shall prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Securities and use its best efforts to cause such Registration Statement to become effective.
(b) The Company shall prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such a Registration Statement and the Prospectus used in connection therewith with such Registration Statement, which Prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective in accordance with at all times during the terms of this Agreement and to Effectiveness Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Shares Registered thereon;
(iii) Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of a Shelf Registration, prepare and file with the SEC such 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 the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective any amendment(s) thereto, including financial statements and to comply with the provisions of the Securities Act with respect to the disposition of schedules, all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwritersdocuments incorporated therein by reference, if anyrequested by such seller, all exhibits and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filedeach preliminary Prospectus, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending upon the effectiveness of such any Registration Statement or any order preventing or suspending the use Statement, ten (10) copies of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement 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 required in connection therewith or as a condition thereto to (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 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 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 resolution 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, 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) contains any , includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) , not misleading or(provided that in no event shall such notice contain any material, if for any other reason it shall be necessary during such time period nonpublic information), and, subject to amend Section 2(r), promptly prepare a supplement or supplement amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to the Holder (or such other number of copies as the Holder may reasonably request).
(g) The Company shall promptly notify the Holder 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 the Holder 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.
(h) If the Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, at the reasonable request of 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 Securities Act, (b) 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 other agreement of which the 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 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 (or in any other confidentiality agreement between the Company and the Holder) shall be deemed to limit the Holder's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
(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, (ii) the Securities Act anddisclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, in either case as promptly as reasonably practicable thereafter(iii) the release of such information is ordered pursuant to a subpoena or other final, prepare and file with the SECnon-appealable order from a court or governmental body of competent jurisdiction, and furnish without charge or (iv) such information has been made generally available to the selling 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 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 managing underwriter Holder, at the Holder's expense, to undertake appropriate action to prevent disclosure of, or underwritersto obtain a protective order for, such information.
(k) The Company shall use its best efforts either to (i) cause all of the Registrable Securities 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, an amendment if the listing of such Registrable Securities is then permitted under the rules of such exchange, or supplement to such (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 Prospectus which will correct such statement the American Stock Exchange, or omission or effect such compliance;
(viiii) use its reasonable if, despite the Company's best efforts to prevent or obtain satisfy, the withdrawal 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 Registrable Securities and, without limiting the generality of any stop order or other order suspending the foregoing, to use its best efforts to arrange for at least two market makers to register with the National Association of any preliminary or final Prospectus;Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 2(k).
(viil) promptly The Company shall cooperate with the Holder who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Holder may reasonably request and registered in such names as the Holder may request.
(m) If requested by the Holder, the Company shall (i) as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may Holder reasonably request requests to be included therein in order relating to permit the intended method sale and distribution of distribution Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable SecuritiesSecurities 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 reasonably practicable 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.
(viiin) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the The Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, shall use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiiio) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the applicable a 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 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;.
(xivp) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) 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, as soon as reasonably practicable, but no later than 90 Commission in connection with any registration hereunder.
(q) Within two (2) business days after a Registration Statement which covers Registrable Securities is ordered effective by the end Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Holder whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the 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 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 12Board 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 Holder in writing of the existence of material, non-month 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 Holder) and the date on which the Grace Period will begin, and (ii) notify the Holder in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed five (5) consecutive days and during any three hundred sixty five (365) day period beginning with such Grace Periods shall not exceed an aggregate of twenty (20) days and the first day of the Company’s first quarter commencing any Grace Period must be at least five (5) trading days after the effective 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 referred to in clause (i) and shall end on and include the later of the applicable Registration Statement, an earnings statement satisfying date the Holder receives the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 11(a2(e) of the Securities Act and the rules and regulations promulgated thereunder and covering hereof shall not be applicable during the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date any Allowable Grace Period. Upon expiration 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunderGrace Period, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated shall again be bound by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense2(f) all copies, other thwith re
Appears in 3 contracts
Sources: Registration Rights Agreement (Forex365, Inc.), Registration Rights Agreement (Forex365, Inc.), Registration Rights Agreement (Forex365, Inc.)
Registration Procedures. (a) In connection with Whenever the Registration and/or sale of Stockholder requests that any Registrable Securities Common Stock be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause effect, as soon as practical as provided herein, the Registration registration and the sale of such Registrable Securities Common Stock in accordance with the intended methods of disposition thereof thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Agreement, use reasonable best efforts to prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement with respect to such Registrable Common Stock and cause such Registration Statement to become effective (unless it is automatically effective upon filing); and before filing a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) furnish to the underwritersStockholder and the underwriters or other distributors, if any, and to identified by the Holders participating in such Registration, Stockholder copies of all such documents prepared 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 review of Stockholder that is contained therein and the Company will make the corrections reasonably requested by the Stockholder with respect to such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith information prior to filing any comments of the underwriters and Holders and their respective counsel on such documentsRegistration Statement or Prospectus or any amendment or supplement thereto;
(ii) use reasonable best efforts to 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 comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective in accordance with for the terms relevant period required hereunder, but no longer than is necessary to complete the distribution of this Agreement the Common Stock covered by such Registration Statement, and to comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all the Common Stock covered by such Registration Statement during such period in accordance with the intended methods of the Shares Registered thereondisposition set forth in such Registration Statement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Common Stock for sale in any jurisdiction in the United States;
(iv) furnish to the Stockholder and each managing underwriter, if any, without charge, conformed copies of each Registration Statement and amendment thereto and copies of each supplement thereto promptly after they are filed with the SEC (but only one set of exhibits thereto need be provided); and deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as the Stockholder may reasonably request in order to facilitate the disposition of the Registrable Common Stock of the Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such U.S. jurisdictions as the Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration 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 would not otherwise be required to qualify but for this subparagraph (v), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(vi) notify the Stockholder and each distributor of such Registrable 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 as 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, 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 amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Common Stock, 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;
(vii) in the case of an underwritten offering in which the Stockholder participates pursuant to a Shelf Demand Registration, prepare Piggyback Registration or an S-3 Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and file with comfort letters) as are customary and reasonable for an offering of such kind, and take all such other customary and reasonable actions as the SEC managing underwriters of such amendments and supplements offering may request in order 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 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 the Company’s officers and employees to supply information reasonably requested by the 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 Shares subject thereto such Registrable Common Stock to be listed on each securities exchange on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for a period ending on the 3rd anniversary after all such Registrable Common Stock not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Common Stock pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Common Stock to be sold, subject to the provisions of Section 11;
(ivxi) notify make generally available to its shareholders a consolidated earnings statement (which need not be audited) for a period of twelve (12) months beginning after the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies effective date of the relevant documents, Registration Statement as soon as reasonably practicable after notice thereof is received by the Company end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(Axii) promptly notify the Stockholder and the managing underwriters of any underwritten offering:
(1) when the applicable Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for any additional information, information regarding the Stockholder;
(C3) 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 such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, Statement; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E4) 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 Registrable Securities for offering applicable securities or sale in any jurisdiction or the initiation or threatening blue sky laws of any proceeding for such purpose;jurisdiction; and
(vxiii) promptly notify each selling Holder keep Stockholder’s Counsel reasonably apprised as to the intention and the managing underwriter or underwriters, if any, when progress of the Company becomes aware with respect to any Registration Statement hereunder, including by providing Stockholder’s Counsel with copies of all written correspondence with the occurrence of SEC in connection with any event as a result of which the applicable Registration Statement or Prospectus filed hereunder. For the Prospectus included avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of 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 be sold in the offering would yield gross proceeds to the Stockholder of 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 (as then in effectincluding any amendments thereto) contains shall contain any untrue statement of a material fact or omits 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 the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made) , not misleading ormisleading, if 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 reason it shall be necessary during such time period distributor specifically for use therein.
(c) At all times after the Company has filed a registration statement with the SEC pursuant to amend or supplement such Registration Statement or Prospectus in order to comply with the requirements of the Securities Act andand until the Termination Date, 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;
(vi) Company shall use its reasonable best efforts to prevent or obtain continuously maintain in effect the withdrawal registration statement of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution Common Stock under Section 12 of the Registrable Securities; Exchange Act 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;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and file all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist in any filings reports required to be made with filed by it under 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders Act 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 Exchange Act and the rules and regulations promulgated thereunder and covering adopted by the period of at least 12 monthsSEC thereunder, but not more than 18 months, beginning with all to the first month after extent required to enable the effective date of the Registration Statement;
(xvii) provide and cause Stockholder to be maintained a transfer agent and registrar for all eligible to sell 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed pursuant to be an underwriter within the meaning of Section 2(11) of Rule 144 under the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period Act prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable SecuritiesTermination Date.
(bd) As a condition precedent to any Registration hereunder, the The Company may require the Stockholder and each Holder distributor of Registrable Common Stock as to which any Registration registration is being effected to furnish to the Company such any other information regarding such Person and 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 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 this Agreementrequest.
(ce) Each Holder agrees, The Stockholder agrees by having its stock treated as Registrable Common Stock hereunder that, upon receipt of any written notice from being advised in writing by the Company of the occurrence of any an event of the kind described in pursuant to Section 2.04(a)(v7(a)(vi), such Holder the Stockholder will forthwith immediately discontinue disposition (and direct any other Persons making offers and sales of Registrable Securities pursuant Common Stock to such Registration Statement immediately discontinue) offers and sales of Registrable Common Stock until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder it is advised in writing by the Company that the use of the Prospectus may be resumedresumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 7(a)(vi), and and, if so directed by the Company, such Holder the Stockholder will deliver to the Company (at the Company’s expense) all copies, other ththan permanent file copies then in the Stockholder’s possession, of the Prospectus covering such Registrable 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. Neither the 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 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 offering until such offering is completed or for 15 business days, whichever 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 If and whenever the Registration and/or sale 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 the provisions of this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable its best efforts to effect or cause the Registration registration of the offer and the sale of such Registrable Securities under the Securities Act in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall as soon as practicable and as applicable:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters Section 2(a), Section 2(b) and such participating Holders and their respective counselSection 2(c), and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) prepare and file with the SEC Commission a Registration Statement covering such Registrable Securities and use its best efforts to cause such Registration Statement to be declared effective;
(b) in the case of a Long-Form Registration or a Short-Form Registration, prepare and file with the Commission such amendments, post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms until all of this Agreement such Registrable Securities have been disposed of and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) such Registrable Securities in the case of a Shelf Registration, prepare and file accordance with the SEC such amendments and supplements to such Registration Statement and the Prospectus used intended methods of disposition set forth in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders and the managing underwriter or underwritersWithin a reasonable time before filing such Registration Statement, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for 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 such a supplement, including a Shelf Supplement, to any Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness forming a part of such Registration Statement or any order preventing or suspending has been filed with the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeCommission;
(ve) promptly notify furnish to each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware holder of the occurrence Registrable Securities such number of any event as a result copies of which the applicable Registration Statement or 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 then such seller may request in effectorder to facilitate the disposition of the Registrable Securities owned by such seller;
(f) contains 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 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 omits to state a material omit any fact necessary in order to make the statements therein (in the case of such Prospectus and any preliminary Prospectusmade therein, in light of the circumstances under which they were made) , not misleading ormisleading, 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 at the request of any such holder, the Company shall prepare a supplement or amendment to such Prospectus so that, as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge 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 and the managing holder of Registrable Securities, any underwriter or underwriters, if any, an amendment or supplement participating in any disposition pursuant to such Registration Statement and any attorney, accountant or Prospectus which will correct other agent retained by any such statement holder or omission or effect underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), and cause the Company’s officers, directors and employees to supply all information requested by any such complianceInspector in connection with such Registration Statement;
(vii) 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 reasonable best efforts to prevent or obtain cause such Registrable Securities to be listed on each securities exchange on which the withdrawal Common Stock is then listed or, if the Common Stock is not then listed, on a national securities exchange selected by the holders of any stop order or other order suspending the use a majority of any preliminary or final Prospectussuch Registrable Securities;
(viik) promptly incorporate in a Prospectus supplement or postconnection with an underwritten offering, enter into such customary agreements (including underwriting and lock-effective amendment up agreements in customary form) and take all such information other customary actions as the holders of such Registrable Securities or the managing underwriters, if any, and the Holders may reasonably underwriter of such offering request to be included therein in order to permit expedite or facilitate the intended method disposition of distribution 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; 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));
(viiil) 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 holder of Registrable Securities and each underwriter, if any, without chargewith (i) a written legal opinion of the Company’s outside counsel, dated the closing date of the offering, in form and substance as many conformed copies as such Holder or underwriter may reasonably request 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 to the applicable Registration Statement and any amendment or post-effective amendment theretoat 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;
(ixn) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectivelimiting Section 5(f), use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or 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;
(xiiio) 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 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 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 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 reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement or Rule 144;
(s) not later than the effective date of the applicable 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 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;
(xivt) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter take no direct 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 indirect action prohibited by Regulation M under the underwriting agreement;
(xv) in the case of an Underwritten OfferingExchange Act; provided, obtain for delivery to and addressed to the underwriter or underwriters andthat, 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 that any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts to comply with all prohibition is 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements Company will take all reasonable action 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 Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoprohibition inapplicable; and
(xxiu) otherwise use its best efforts to take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution registration 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 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 this Agreementcontemplated hereby.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
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. (a) In connection with If and whenever the Registration and/or sale 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 the provisions of this Agreement, through an Underwritten Offering or otherwise, the Company QES Parties shall use their respective commercially reasonable best efforts to effect or cause the Registration Partnership to effect the offer and the sale of such Registrable Securities under the Securities Act in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the QES Parties shall cause the Partnership as soon as reasonably practicable and as applicable to:
(ia) subject to Section 2, prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC Commission a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish covering such Registrable Securities and use its commercially reasonable efforts to the underwriters, if any, and to the Holders participating in cause such Registration, copies of all documents prepared Registration Statement to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsdeclared effective;
(iib) prepare and file with the SEC 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 amendments, post-effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares Registrable Securities subject thereto for a period ending on the 3rd anniversary earlier of (i) 6 months after the effective date of such Registration Statement and (ii) the date on which all the Registrable Securities subject thereto have been sold pursuant to such Registration Statement;
(ivc) notify the participating Holders and the managing underwriter or underwriterswithin a reasonable time before filing such Registration Statement, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements thereto with the Commission, furnish to one counsel selected by the holders of a majority of the Registrable Securities included in such Registration Statement, Prospectus or amendments or supplements thereto 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 Partnership receives notice thereof, of the time when such Registration Statement has been declared effective or such a supplement to any Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness forming a part of such Registration Statement or any order preventing or suspending has been filed with the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeCommission;
(ve) promptly notify furnish to each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware holder of the occurrence Registrable Securities such number of any event as a result copies of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto in each case including all exhibits and documents incorporated by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoreference therein) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(xf) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel holder reasonably request in writing requests and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as holders to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered owned by the Registration Statementsuch holders; provided provided, that the Company will Partnership shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or business, subject itself to take any action which would subject it to general taxation or 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);
(xig) 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, making appropriate officers of the Partnership 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 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 sale 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 that will result in such securities no longer being Registrable Securities, cooperate with and each selling Holder and the managing underwriter or underwritersunderwriter, if any, with (i) a written legal opinion of the 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 facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legendsunderwriters in underwritten registered offerings; and to register such Registrable Securities in such denominations and such names as such selling Holder or (ii) on the underwriter(s), if any, may request at least two Business Days prior to such sale date of Registrable Securities; 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;
(xii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if anyapplicable Prospectus, 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 effective date of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required post-effective amendment 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 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 underwriter or 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;
(xiiio) 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) 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 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 Partnership may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of The Depository Trust Company (“DTC”);
(r) not later than the effective date of the applicable 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 The Depository Trust CompanyDTC; provided provided, that the Company Partnership may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemthe facilities of DTC;
(xivs) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter take no direct 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 indirect action prohibited by Regulation M under the underwriting agreement;
(xv) in the case of an Underwritten OfferingExchange Act; provided, obtain for delivery to and addressed to the underwriter or underwriters andthat, 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 that any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down prohibition is applicable to the closing under Partnership, the underwriting agreement;
(xvi) use its Partnership will take all commercially reasonable best efforts action 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoprohibition inapplicable; and
(xxit) otherwise use its commercially reasonable efforts to take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution registration 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 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 this Agreementcontemplated hereby.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 3 contracts
Sources: Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement
Registration Procedures. (a) In connection with the Registration and/or sale any registration of Registrable Interests under the Securities Act pursuant to this Agreement, through an Underwritten Offering the Company will consult with each Equityholder whose equity interest is to be included in any such registration concerning the form of underwriting agreement, shall provide to 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 otherwisedistribution 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 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 shall use reasonable best efforts to effect may deregister any securities covered by such Registration Statement and not then sold or cause distributed. In the Registration event that the Company prepares and files with the Commission a registration statement on any appropriate form under the Securities Act (a "REGISTRATION STATEMENT") providing for the sale of such Registrable Securities in accordance with Interests held by any Equityholder pursuant to its obligations under this Section 8, the intended methods of disposition thereof andCompany will:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before upon filing with the SEC a Registration Statement or Prospectus, any prospectus related thereto (a "PROSPECTUS") or any amendments or supplements thereto, (A) furnish to the Equityholders whose Registrable Interests are covered by such Registration Statement and the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the ninety (90) day period referenced in accordance with Section 8(e); cause the terms of this Agreement 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 period in accordance with the intended methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement or supplement to such Prospectus;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) promptly notify the participating Holders Equityholders and the managing underwriter or underwriters, if any, and (if requestedrequested by any such Person or entity) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filedbecome effective, (B) of any written comments by the SEC or any request by the SEC Commission or any other Governmental Authority state securities commission for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, (C) of the issuance by the SEC Commission or any state securities commission of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities Interests for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
, and (vE) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence existence of any event as fact which results in a result of which the applicable Registration Statement Statement, a Prospectus or the Prospectus included in such Registration Statement (as then in effect) contains any document incorporated therein by reference containing an untrue statement of a material fact or omits omitting to state a material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(viiv) use its commercially reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusa Registration Statement;
(viiv) if requested by the managing underwriters or a Equityholder, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and underwriters or the Holders may reasonably request to Equityholders holding a majority of the Registrable Interests being sold by Equityholders agree should be included therein in order relating to permit the intended method sale of distribution such Registrable Interests, including without limitation information with respect to the amount of Registrable 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 SecuritiesInterests 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;
(viiivi) furnish to each selling Holder such Equityholder and each underwriter, if any, without charge, as many conformed copies as such Holder or managing underwriter may reasonably request at least one signed copy 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);
(ixvii) deliver to each selling Holder such Equityholders and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder Persons or underwriter entities may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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 underwriterrequest;
(xviii) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany Public Sale of Registrable Interests, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter qualify or 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” sky laws of each state and other jurisdiction of such jurisdictions within the United States as any selling Holder Equityholder or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 taxation or general service of process or taxation in any such jurisdiction where it is not then so subject;
(xiix) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder the Equityholders and the managing underwriter or 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 Securities Act legends; , and to register enable such Registrable Securities Interests to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days prior to such any sale of Registrable Securities; provided that Interests to the underwriters;
(x) if any fact described in clause (iii)(E) above exists, prepare a supplement or 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 Interests being sold thereunder, 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;
(xi) cause all Registrable Interests covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemare then listed;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 such Registrable Securities Interests covered by the applicable Registration Statement from and after a date such registration statement not later than the effective date of such Registration Statementregistration statement;
(xviiixiii) cause all Registrable Securities 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 matters as are customarily covered by such opinions and "cold comfort" letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwriter, if any, and to the Equityholders owning a majority in interest of the Registrable Securities Interests being registered in such offering, and furnish to be Registered, (C) each Equityholder participating in the sale or placement agent thereforoffering and to each underwriter, if any, a copy of such opinion and letter addressed to such Equityholder or underwriter;
(Dxiv) deliver promptly to each Equityholder participating in the offering and each underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement, other than those portions of any such correspondence and memoranda which contain information subject to attorney-client privilege with respect to the Company, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by any seller of such underwriters or agentRegistrable Interests covered by such Registration Statement, by any underwriter, if any, participating in any disposition to be effected pursuant to such registration statement and (E) by any attorney, accountant or other agent or representative retained by any such Holder seller 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 all of the Company’s 's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement;
(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 any such Person representative, underwriter, attorney or accountant in connection with such Registration Statement Statement; provided, however, that any records, information or documents that are designated by the Company in writing as confidential shall be necessary to enable them to exercise their due diligence responsibilitykept confidential by such Persons or entities unless disclosure of such records, subject to the foregoing, provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xixdocuments is required by court or administrative order;
(xviii) shall agree to otherwise use its commercially reasonable efforts to protect comply with all applicable rules and regulations of the confidentiality Commission and relevant state securities commissions, and make generally available to the Equityholders earning statements satisfying the provisions of Section 12(a) of the Securities Act no later than forty-five (45) days after the end of any information regarding 12-month period (or one-hundred and twenty (120) days, if such period is a fiscal year) commencing at the Company end of any fiscal quarter in which the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (x) the release Registrable Interests of such information Equityholder is required by law or regulation or is requested or required by depositionsold to underwriters in an underwritten offering, interrogatoryor, requests for information or documents by a governmental entityif not sold to underwriters in such an offering, 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 beginning with the Company or (z) such information is independently developed by such Person;
(xx) to cause the executive officers first month of the Company to participate in Company's first fiscal quarter commencing after the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitateeffective date of a Registration Statement, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretowhich statements shall cover said 12-month periods; and
(xxixix) take all such other customary steps reasonably commercially reasonable actions as are necessary or advisable in order to effect expedite or facilitate the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution disposition 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 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 this AgreementInterests.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 3 contracts
Sources: Equityholders Agreement (Dex Media West LLC), Equityholders Agreement (Dex Media Inc), Equityholders Agreement (Dex Media International Inc)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale REIT is required by the provisions of this Agreement to effect the registration of any of the Registrable Shares under the Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseAct, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof andREIT shall, at its expense:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(iia) prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Shares and use best efforts to cause that Registration Statement to become effective;
(b) use commercially reasonable efforts to cause the Registration Statement to remain effective;
(c) subject to the provision of Section 2, promptly prepare and file with the Commission any amendments and supplements to such the Registration Statement and the Prospectus used prospectus included in connection therewith the Registration Statement as may be necessary to keep such the Registration Statement effective for the period of time required by the Commission;
(d) promptly furnish to each Participating Holder such reasonable numbers of copies of the prospectus, including a preliminary prospectus, in accordance conformity with the terms of this Agreement and to comply with the provisions requirements of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf RegistrationAct, 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter the Participating Holders may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such Holder or underwriter;Participating Holders and included in the Registration Statement; and
(xe) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, promptly use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, qualify the managing underwriter or underwriters, if any, and their respective counsel, in connection with Registrable Shares covered by the registration or qualification of such Registrable Securities for offer and sale Registration Statement under the securities or “blue sky” Blue Sky laws of each state and other jurisdiction of states within the United States as any selling Holder or managing underwriter or underwritersthe Participating Holders shall reasonably request; provided, if anyhowever, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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 REIT shall not be required to in connection with this subsection 3(e) to: (i) qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this subsection 3(e), it is would not then be obligated to be so qualified or qualified; (ii) execute a general consent 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;
jurisdiction; (xiiii) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, subject itself to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist taxation in any filings required such jurisdiction; or (iv) register in any state requiring, as a condition to be made with the FINRA and each securities exchangeregistration, if any, on which any of the Company’s securities are then listed escrow or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted, and in the performance surrender of any due diligence investigation REIT securities held 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 security holder 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;
(xiii) not later than the effective date of Participating Holders. If the applicable Registration Statement, provide REIT has delivered a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in preliminary or final prospectus to 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;
(xiv) 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 addressed to the underwriter or underwriters Participating Holder and, to after having done so, 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts prospectus is amended 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) requirements of the Securities Act), the REIT shall promptly notify such Participating Holder and, if anyrequested, such Participating Holder shall immediately cease making offers of Registrable Shares and return all prospectuses to the REIT. The REIT shall promptly provide Participating Holders with revised prospectuses and, following receipt of the revised prospectuses, Participating Holders shall be free to resume making offers of the Registrable Securities Shares. Notwithstanding any other provisions of this Agreement to be Registeredthe contrary, (C) upon receipt by a Participating Holder of a written notice signed by the sale Chief Executive Officer, General Counsel or placement agent thereforChief Financial Officer of the REIT, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holderto the effect set forth below, the opportunity REIT shall not be obligated during a reasonable period of time thereafter to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SECeffect any registrations pursuant to this Agreement, and each amendment or supplement thereto, and to require the insertion therein such Participating Holder agrees that it will immediately suspend sales of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and Shares under any effective Registration Statement for a reasonable period prior of time, in either case not to exceed 90 days, at any time during which, in the REIT's reasonable judgment, (i) there is a development involving the REIT or any of its affiliates which is material but which has not yet been publicly disclosed or (ii) sales pursuant to the filing of such Registration Statement, make available upon reasonable notice at reasonable times Statement would materially and adversely affect an underwritten public offering for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties account of the Company that REIT or any other material financing project or where a proposed or pending material merger or other material acquisition or material business combination or material disposition of the REIT's assets, to which the REIT or any of its affiliates is, or is expected to be, a party. In the event a registration is postponed or sales by a Participating Holder pursuant to an effective Registration Statement are available suspended in accordance with this paragraph, there shall be added to the Company, and cause period during which the Company’s officers, employees and the independent public accountants who have certified its financial statements REIT is obligated 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 Person in connection with such keep a Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to effective the foregoing, provided that any such 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 number of any information regarding the Company days for 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented was postponed or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thsales were suspended.
Appears in 3 contracts
Sources: Registration Rights Agreement (Acadia Realty Trust), Registration Rights and Lock Up Agreement (Acadia Realty Trust), Registration Rights and Lock Up Agreement (Acadia Realty Trust)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the The Company shall use commercially reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities Shares in accordance with the intended methods terms hereof, and pursuant thereto the Company shall as expeditiously as possible, but subject to the other provisions of disposition thereof andthis Agreement:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(iia) prepare and file with the SEC by the applicable Filing Deadline or the Required Filing Date, as applicable, each Registration Statement on the appropriate form under the Securities Act with respect to such amendments Registrable Shares as required or permitted in accordance with the terms of this Agreement and use commercially reasonable efforts to cause such Registration Statement to become effective by the applicable Effectiveness Deadline, and to remain continuously effective throughout the applicable Effectiveness Period, prepare and file with the SEC such amendments, post-effective amendments, and supplements to such each Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with throughout the terms of this Agreement applicable Effectiveness Period and to comply with the provisions of the Securities Act with respect to the disposition of all of the Registrable Shares Registered thereon;
(iii) during such period in the case of a Shelf Registration, prepare and file accordance with the SEC intended methods of disposition by the sellers thereof set forth in such amendments and supplements to Registration Statement; provided that as far in advance as practicable before filing any such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any timeStatement, the representations Company shall furnish to the selling Holders copies of reasonably complete drafts of all such documents prepared to be filed (including exhibits and warranties of 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 in shall make any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt corrections or other amendments reasonably requested by the Company of any notification such Holder with respect to the suspension of the qualification of the Registrable Securities for offering such information prior to filing any such Registration Statement, amendment or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposesupplement;
(vb) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the each Holder 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder Shares and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by securities being registered such Prospectus or any number of copies of each Registration Statement, each amendment or 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 selling Holder or underwriter underwriters may reasonably request in order to facilitate the disposition of the Registrable Securities Shares owned by such Holder or underwriterthe 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);
(xc) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale Shares under the such other securities or “blue sky” laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder thereof or any managing underwriter underwriters reasonably request; use commercially reasonable efforts to keep each such registration or underwriters, if any, qualification (or their respective counsel reasonably request in writing exemption therefrom) effective during the applicable Effectiveness Period; and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable each such registration or qualification in effect for so long as such Registration Statement remains in effect and so as Holder to permit consummate the continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution disposition of the Registrable Securities covered Shares owned by the Registration Statementsuch Holder in such jurisdictions; provided that the Company will 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 subparagraph, (ii) subject itself to taxation in any such jurisdiction where it is not then at such time so qualified subject, or (iii) consent to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then at such time so subject;
(xid) in connection with any sale promptly notify each Holder of such Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with Shares and each selling Holder and the managing underwriter or underwritersunderwriter, if any, in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to facilitate a Registration Statement or any post-effective amendment, when the timely preparation and delivery same has become effective; (ii) of certificates representing Registrable Securities to be sold and not bearing the issuance by any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder state securities or other regulatory authority of any order suspending the underwriter(s), if any, may request at least two Business Days prior to such sale qualification or exemption from qualification of Registrable Securities; 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;
(xii) 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 Registrable Shares under state securities are then listed or quoted and on each inter-dealer quotation system on which any “blue sky” laws or the initiation or threat of the Company’s securities are then quoted, and in the performance initiation of any due diligence investigation by proceedings for that purpose; and (iii) if such Registration Statement or related prospectus, at the time it or any underwriter (including amendment thereto became effective or at any “qualified independent underwriter”) that time such prospectus is required to be retained in accordance with delivered under the rules and regulations Securities Act, contained an untrue statement of each such exchangea material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and use its reasonable best efforts to cause upon the Registrable Securities covered discovery 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 Company of such Registrable Securities;
(xiii) not later than the effective date material misstatement or omission or of the applicable Registration Statement, provide happening of any event as a CUSIP number for all Registrable Securities and provide result of which the applicable transfer agent with printed certificates for the Registrable Securities which are in Company believes there would be such a form eligible for deposit with The Depository Trust Companymaterial misstatement or omission; 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;
(xiv) that, in the case of an Underwritten Offeringclause (iii), obtain for 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 addressed 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 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 selling Holders and 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 underwriter or underwritersstatements therein, an opinion from the Company’s outside counsel in customary form and content for the type of Underwritten Offering, dated the date light of the closing circumstances under the underwriting agreementwhich they were made, not misleading;
(xve) permit (i) any selling Holder that, in the case of an Underwritten Offeringsuch Holder’s reasonable judgment, obtain for delivery to and 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 may 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter or a controlling person of the Company (in each case, within the meaning of Section 2(11) of the Securities Act)) and (ii) any selling Holder holding, if anyor representing Holders of, a majority of the Registrable Securities to be RegisteredShares included in such Registration Statement, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein Statement or filed with the SEC, related prospectus and each amendment or supplement thereto, and to require the insertion therein of material, reasonably incorporate any information about such Holder furnished to the Company in writingby such Holder that, which in the reasonable judgment of such Holder(s) and their counsel the Company, should be included; and for a reasonable period prior to the filing ;
(f) make reasonably available senior management of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 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 officerssenior management in road show presentations and other customary marketing activities, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business including “one on one” meetings with prospective purchasers of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 Registrable Shares 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate sold in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any an Underwritten Offering 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; andprovided that such assistance does not unduly interfere with the normal operations of the Company in the ordinary course of business, consistent with past practice;
(xxig) take 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 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 customary steps 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;
(i) cooperate with the selling Holders and the managing underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Shares sold under any Registration Statement, which certificates shall not bear any restrictive legends unless required under applicable law, and enable such Registrable Shares 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;
(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 effect enable them to exercise their due diligence responsibility, and cause the RegistrationCompany’s officers, offering directors, employees and sale 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 Registrable Securities.
(b) As Registration Statement or the release of such Records is ordered pursuant to a condition precedent to any Registration hereundersubpoena or other order from a court of competent jurisdiction, the Company may require each Holder as shall not be required to which provide any Registration is being effected to furnish to 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 regarding or (ii) if either (A) the distribution Company has requested and been granted from the SEC confidential treatment of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company may from time to time reasonably request determines in good faith that such Records are confidential and so notifies the Inspectors in writing. Each , 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 to furnish that it shall, upon learning that disclosure of such information Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to cooperate with 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 commercially reasonable efforts to cause Registrable Shares covered by such Registration Statement to be registered with or approved by such other Governmental Authorities as reasonably may be necessary to enable the Company sellers thereof to comply with consummate the provisions disposition of this Agreement.such Registrable Shares;
(co) Each notify each selling Holder agrees, that, upon receipt promptly of any written notice from 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 occurrence Registrable Shares covered by the Registration Statement or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable 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 kind described 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 Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until for sale in any jurisdiction, the Company shall use commercially reasonable efforts promptly to obtain the withdrawal of such Holder’s receipt order;
(r) provide a CUSIP number for all Registrable Shares not later than the effective date of the copies Registration Statement with respect thereto;
(s) in connection with an Underwritten Registration, make such representations and warranties to the selling Holders of such Registrable Shares and the supplemented or amended Prospectus contemplated underwriters with respect to the Registrable Shares and the Registration Statement as are customarily made by Section 2.04(a)(v), or until issuers to underwriters in primary underwritten offerings and deliver such Holder is advised in writing documents and certificates as may be reasonably requested by each seller of Registrable Shares covered by the Company that Registration Statement and by the use of underwriters to evidence compliance with such representations and warranties and with any customary conditions contained in the Prospectus may be resumed, and if so directed underwriting agreement or other agreement entered into by the Company;
(t) advise each selling Holder, promptly after it shall receive notice or obtain knowledge thereof, of the issuance or threat of issuance of any stop order by the SEC suspending the effectiveness of such Holder will deliver Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use commercially reasonable efforts to prevent the Company (issuance of any stop order or to obtain its withdrawal at the Company’s expense) all copies, other thearliest 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. (a) In connection with the Registration and/or sale of Whenever any Registrable Securities are to be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable its best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall have the following obligations:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) The Company shall prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Securities and use its best efforts to cause such Registration Statement to become effective.
(b) The Company shall prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such a Registration Statement and the Prospectus used in connection therewith with such Registration Statement, which Prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective in accordance with at all times during the terms of this Agreement and to Effectiveness Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Shares Registered thereon;
(iii) Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of a Shelf Registration, prepare and file with the SEC such 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 the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective any amendment(s) thereto, including financial statements and to comply with the provisions of the Securities Act with respect to the disposition of schedules, all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwritersdocuments incorporated therein by reference, if anyrequested by such seller, all exhibits and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filedeach preliminary Prospectus, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending upon the effectiveness of such any Registration Statement or any order preventing or suspending the use Statement, ten (10) copies of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement 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 required in connection therewith or as a condition thereto to (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 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 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 resolution 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, 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) contains any , includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) , not misleading or(provided that in no event shall such notice contain any material, if for any other reason it shall be necessary during such time period nonpublic information), and, subject to amend Section 2(r), promptly prepare a supplement or supplement amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to the Holder (or such other number of copies as the Holder may reasonably request).
(g) The Company shall promptly notify the Holder 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 the Holder 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.
(h) If the Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, at the reasonable request of 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 Securities Act, (b) 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 other agreement of which the 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 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 (or in any other confidentiality agreement between the Company and the Holder) shall be deemed to limit the Holder's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
(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, (ii) the Securities Act anddisclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, in either case as promptly as reasonably practicable thereafter(iii) the release of such information is ordered pursuant to a subpoena or other final, prepare and file with the SECnon-appealable order from a court or governmental body of competent jurisdiction, and furnish without charge or (iv) such information has been made generally available to the selling 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 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 managing underwriter Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or underwritersto obtain a protective order for, such information.
(k) The Company shall use its best efforts either to (i) cause all of the Registrable Securities 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, an amendment if the listing of such Registrable Securities is then permitted under the rules of such exchange, or supplement to such (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 Prospectus which will correct such statement the American Stock Exchange, or omission or effect such compliance;
(viiii) use its reasonable if, despite the Company's best efforts to prevent or obtain satisfy, the withdrawal 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 Registrable Securities and, without limiting the generality of any stop order or other order suspending the foregoing, to use its best efforts to arrange for at least two market makers to register with the National Association of any preliminary or final Prospectus;Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 2(k).
(viil) promptly The Company shall cooperate with the Holder who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Holder may reasonably request and registered in such names as the Holder may request.
(m) If requested by the Holder, the Company shall (i) as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may Holder reasonably request requests to be included therein in order relating to permit the intended method sale and distribution of distribution Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable SecuritiesSecurities 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 reasonably practicable 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.
(viiin) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the The Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, shall use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiiio) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the applicable a 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 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;.
(xivp) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) 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, as soon as reasonably practicable, but no later than 90 Commission in connection with any registration hereunder.
(q) Within two (2) business days after a Registration Statement which covers Registrable Securities is ordered effective by the end Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Holder whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the 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 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 12Board 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 Holder in writing of the existence of material, non-month 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 Holder) and the date on which the Grace Period will begin, and (ii) notify the Holder in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed five (5) consecutive days and during any three hundred sixty five (365) day period beginning with such Grace Periods shall not exceed an aggregate of twenty (20) days and the first day of the Company’s first quarter commencing any Grace Period must be at least five (5) trading days after the effective 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 referred to in clause (i) and shall end on and include the later of the applicable Registration Statement, an earnings statement satisfying date the Holder receives the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 11(a2(e) of the Securities Act and the rules and regulations promulgated thereunder and covering hereof shall not be applicable during the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date any Allowable Grace Period. Upon expiration 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunderGrace Period, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated shall again be bound by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense2(f) all copies, other thwith 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. (a) In connection with the Registration and/or sale registration of any Registrable Securities under the Securities Act pursuant to this Agreement, through an Underwritten Offering or otherwiseArticle II and Article III, the Company Corporation shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof andas expeditiously as reasonably possible:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectusregistration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become 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 such registration statement, prospectus or any amendments or supplements thereto, (A) the Corporation will furnish to the underwriters, if any, and to counsel selected by the Holders participating Stockholders which are including Registrable Securities in such Registration, registration copies of all such documents prepared proposed to be filed, which documents will be subject to the review review, comment and approval of such underwriters counsel prior to filing, and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;review to be conducted with reasonable promptness;
(ii) prepare and file with the SEC such amendments, post-effective amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on securities covered by such registration statement until the 3rd anniversary after the effective date earlier of such Registration Statement;time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (but 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 public sale or other disposition of the Registrable Securities owned by such Selling Stockholder;
(iv) notify use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Stockholder and any underwriter of the participating Holders securities being sold by such Selling Stockholder shall reasonably request, and take any other 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 owned by such Selling Stockholder, except that the 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 subject or (C) file a general consent to service of process in any such jurisdiction where it is not then so subject;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Corporation are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the National Securities Exchange on which the Common Shares are listed;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other Governmental Entities as may be necessary to enable each Selling Stockholder thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Stockholder and underwriter:
(A) an opinion of counsel for the Corporation, in customary form and covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Stockholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Corporation’s financial statements included in such registration statement and additional comfort letters from the independent registered public accounting firm for any company acquired by the Corporation whose financial statements are included or incorporated by reference in the registration statement) in customary form and covering such matters as are customarily covered by comfort letters as such underwriter and such Selling Stockholders may reasonably request; provided, however, that if the Corporation fails to obtain such legal opinion or comfort letter hereunder and the managing relevant offering is abandoned, then such offering will not count as a Demand Registration or Shelf Takedown for purposes of determining when future Demand Registrations or Shelf Takedowns may be requested by Stockholders hereunder;
(viii) promptly make available for inspection by any Selling Stockholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Stockholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Corporation (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility in connection with such registration statement, and cause the Corporation’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the 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, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company 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 applicable Registration Statement or any amendment thereto same has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, become effective;
(B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority Entity for amendments or supplements to such Registration Statement the registration statement or such Prospectus the prospectus or for additional information, information;
(C) of the issuance by the SEC or any other Governmental Entity of any stop order suspending the effectiveness of such Registration Statement the registration statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in suspension by any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension 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 threatening threat of any proceeding for such purpose;purpose;
(vx) promptly notify each selling Holder and Selling Stockholder, at any time when a prospectus relating thereto is required to be delivered under the managing underwriter Securities Act, upon discovery that, or underwriters, if any, when upon the Company becomes aware of the occurrence happening of any event as a result of which which, the applicable Registration Statement or the Prospectus prospectus included in such Registration Statement (registration statement, as then in effect) contains any , includes an untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein (in the case 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 and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall prospectus as may be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act andso that, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge thereafter delivered to the selling Holder and 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 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;statements therein not misleading;
(vixi) use its reasonable best efforts to prevent or the issuance of and, if issued, obtain the withdrawal of any stop order or other order suspending the use effectiveness of such registration statement or any suspension of the qualification of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” sky laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;jurisdiction;
(xii) 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 otherwise 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC SEC, and make generally available to its security holderseach Selling Stockholder, as soon as reasonably practicable, but no later than 90 days after the end an earning statement of the Corporation covering the period of at least twelve (12-month period ) months, but not more than eighteen (18) months, beginning with the first day of the CompanyCorporation’s first full quarter commencing after the effective date of the applicable Registration Statementsuch registration statement, an earnings which earning statement satisfying shall satisfy 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 Rule 158 thereunder;
(xiii) cooperate with the first month after Selling Stockholders and the effective date 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 Registration Statement;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, 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) provide as expeditiously as possible and cause 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 maintained 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 transfer agent 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 registrar the underwriters for all Registrable Securities covered by the applicable Registration Statement from their reasonable review and after a date comment, such review and comment to be conducted promptly;
(xxi) not later than the effective date of such Registration Statement;the applicable registration statement, provide a CUSIP number for all Registrable Securities; and
(xviiixxii) cause to take all Registrable Securities covered by other reasonable steps necessary or advisable to effect 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 registration 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, disposition of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitieshereby.
(b) As a condition precedent to any Registration hereunder, the Company The Corporation may require each Holder as to which any Registration is being effected Selling Stockholder and each underwriter, if any, to furnish to the Company Corporation in writing such information regarding each Selling Stockholder or underwriter and 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 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thR
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. (a) In connection with the obligations of the Company with respect to the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseStatements contemplated by Section 3 hereof, the Company shall use reasonable best efforts to effect or cause shall:
(a) prepare and file with the SEC, within the time period set forth in Section 3 hereof, the Registration and Statements, which Registration Statements shall (i) be available for the sale of such the Registrable Securities in accordance with the intended method or methods of disposition distribution by the selling Holders thereof and:
and (iii) prepare comply as to form in all material respects with the requirements of the applicable form and file the required Registration Statement, including include all exhibits and financial statements required under by the Securities Act SEC to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiib) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder of Registrable Securities that has delivered a Registration Notice to the Company or underwriter may reasonably request of the applicable otherwise is entitled to have its Registrable Securities included in a Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if anyStatement, without charge, as many copies of the applicable each Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder in order to facilitate the public sale or underwriter may reasonably request (it being understood that other disposition of the Registrable Securities; the Company consents to the use of such the Prospectus or and any amendment or supplement thereto by each selling such Holder and the underwriters, if any, of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by such the Prospectus or any amendment or supplement thereto;
(c) and such other documents as such selling Holder use its reasonable efforts to register or underwriter may reasonably request in order to facilitate the disposition of qualify the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable time any Registration Statement is declared effective by the SEC under all applicable state securities or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification blue sky laws of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of jurisdictions in the United States and its territories and possessions as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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 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 to take any action which would register but for this Section 4(c), (ii) subject it itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(xid) in connection with any sale furnish to each Holder of Registrable Securities that will result has delivered a Registration Notice to the Company or is otherwise entitled to have its Registrable Securities included in such securities no longer being Registrable Securitiesa 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 each the selling Holder and the managing underwriter or underwriters, if any, Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legendslegend; and to register enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such denominations and such names as such the selling Holder or the underwriter(s), if any, Holders may reasonably request at least two Business Days business days prior to such any sale of Registrable Securities; 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;
(xii) 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;
(xiiif) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred Holders of Registrable Securities that have provided a Registration Notice to in (A) through (E) abovethe Company and any counsel, accountants or other representatives retained by such Holders 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 officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all such records, documents or information available to the Company reasonably requested by any such Person Holders, counsel, accountants or representatives in connection with the Registration Statement; provided, however, that such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibilityrecords, subject to the foregoing, provided that any such Person gaining access to documents or 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 confidentialconfidential and notifies such Holders, and of which determination counsel, accountants or representatives in writing that such Person is notifiedrecords, documents or information are confidential shall not be disclosed by such Holders, counsel, accountants or representatives unless (xi) the release of such information disclosure is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by ordered pursuant to a governmental entity, subpoena or similar processother order from a court of competent jurisdiction, or (yii) such records, documents or information is or becomes publicly known without become generally available to the public other than through 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 or (z) such information is independently developed by such Person;
(xxg) use its reasonable efforts to cause the executive officers of 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 to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter are then listed or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretotraded; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the The Company may require each Holder as to which any Registration is being effected of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by such Holder 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 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
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. (a) In connection with If and whenever the Registration and/or sale Company is required to effect the registration of any Registrable Securities under the Securities Act pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable its best efforts to effect or cause and facilitate the Registration registration, offering and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andas promptly as is practicable, and pursuant thereto the Company shall as expeditiously as possible:
(ia) prepare and (within 30 days after the end of the 30-day period within which requests for registration may be given to the Company pursuant hereto) file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectuswith respect to such Registrable Securities, make all required filings with FINRA and thereafter (if the Registration Statement is not automatically effective upon filing) shall use its best efforts to cause such Registration Statement to become effective, provided that before filing a Registration Statement or any amendments or supplements thereto, (A) the Company will furnish to the underwriters, if any, and to the Holders participating in Holders’ Counsel for such Registration, registration copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and counsel at the Company’s expense, provided further that Holders’ Counsel for such participating registration shall forward such documents to the Holders and their respective counselHedge Fund Parties participating in such registration, give the Holders (and (Bthe Hedge Fund Parties to the extent named therein and only with respect thereto and with respect to the amount of Registrable Securities proposed to be sold by them) consider in good faith any comments of the underwriters an opportunity to comment on such documents and keep such Holders and their respective counsel on such documentsHedge Fund Parties reasonably informed as to the registration process;
(iib) (i) prepare and file with the SEC such amendments and supplements to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of either (A) not less than 6 months or, if such Registration Statement relates to an Underwritten Offering, such longer period as in the opinion of counsel for the managing underwriter(s) a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer, or two years in the case of Shelf Registration Statements (or such shorter period ending on the date that the securities covered by such Shelf Registration Statement cease to constitute Registrable Securities) or (B) such shorter period when all of the securities covered by such Registration Statement have been disposed of in accordance with the terms intended methods of this Agreement disposition by the seller(s) thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required under the Securities Act) and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and the Prospectus used until such time as all of such securities have been disposed of in connection therewith as may be necessary to keep such Registration Statement effective and to comply accordance with the provisions intended methods of disposition by the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of seller(s) thereof as set forth in such Registration Statement;
(ivc) furnish to each seller of Registrable Securities 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 seller may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify any 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 that may be necessary or reasonably advisable to enable such seller to consummate the disposition of the seller’s Registrable Securities in such jurisdictions (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 subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);
(e) use its best efforts to cause all Registrable Securities covered by any Registration Statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable the seller(s) thereof to consummate the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof;
(f) promptly notify each seller of such Registrable Securities and Holders’ Counsel, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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 seller(s) 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;
(g) notify the participating Holders each seller of any Registrable Securities covered by any Registration Statement and the managing underwriter or underwriters, if any, and Holders’ Counsel (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or of any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or to amend or to supplement such Prospectus prospectus or for additional information, and (Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for any of such purposes, ;
(Dh) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease cause all such Registrable Securities to be true and correct in all material respects, and (E) of the receipt listed on each securities exchange on which similar securities issued by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as are then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading listed 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein no similar securities issued by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or are then listed on any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectivesecurities exchange, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of cause all such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder listed on whichever of the New York Stock Exchange or the underwriter(s)NASDAQ Stock Market, if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that as shall be selected by the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviii) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement, and, if required, obtain a CUSIP number for such Registrable Securities not later than such effective date;
(xviiij) cause all Registrable Securities covered enter into such customary agreements (including underwriting agreements with customary provisions in such forms as may be requested by the applicable Registration Statement to be listed on each securities exchange on which any managing underwriter(s)) and take all such other actions as a majority of the Company’s Common Stock are then listed Holders 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwriters, if any, reasonably request in order to expedite or facilitate the disposition of the such Registrable Securities (including, without limitation, effecting a share split or a combination of shares);
(k) make available for inspection by any seller of Registrable Securities and Holders’ Counsel, any underwriter participating in any disposition pursuant to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, Registration Statement and (E) any attorney, accountant or other agent or representative retained by such Holder or any such seller or 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties documents relating to the business of the Company that are available to the Company, and cause the Company’s officers, directors, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their and make senior management of the Company available for customary due diligence responsibilityand drafting activity; provided, subject to the foregoing, provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix2.4(k) 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 (xA) the release of such information is required by law or regulation or is requested or required (by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process), (yB) such information is or becomes publicly known without a breach of this Agreementagreement, (FC) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (zD) such information is independently developed by such Person;
(xxl) otherwise use its best efforts to cause comply with all applicable rules and regulations of the executive officers SEC, and make available to its security holders, as soon as reasonably practicable, an earnings 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 will satisfy the provisions of Section 11(a) of the U.S. Securities Act and Rule 158 thereunder;
(m) in the case of an Underwritten Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter(s) or any seller of Registrable Securities reasonably request 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;
(n) 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 ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use every reasonable effort to promptly obtain the withdrawal of such order;
(o) make senior management of the Company available to participate assist to the extent requested by the managing underwriter(s) of any Underwritten Offering to be made pursuant to such registration in the customary marketing of the Registrable Securities to be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations that may and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be reasonably requested by sold in the managing underwriter or underwriters in any Underwritten Offering 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 Shares;
(p) obtain all consents of independent public accountants required to be included in the Registration Statement and, in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the underwriters and to the seller(s) of Registrable Securities, dated the effective date of the Registration Statement (and, in the case of each Underwritten Offering, dated the date of each 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 as the underwriters or the Holders of a majority of the Registrable Securities being sold in such offering reasonably request;
(q) provide all legal opinions from the Company’s outside counsel required to be included in the Registration Statement, and, in connection with each closing of a sale of Registrable Securities, provide legal opinions from the Company’s outside legal counsel, addressed to the underwriters and the Holders of the Registrable Securities being sold (and, if any Hedge Fund Parties are selling Registrable Securities in the offering, to such Hedge Fund Parties), dated the effective date of each Registration Statement and each amendment and supplement thereto (and, if such registration includes an Underwritten Offering, dated the date of the closing under the underwriting agreement), with respect to the Registration Statement, each 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; and
(xxir) use its best efforts to take or cause to be taken all other customary steps actions, and do and cause to be done all other things necessary or reasonably necessary advisable in the opinion of Holders’ Counsel to effect the Registrationregistration, offering marketing and sale of the such Registrable Securities.
(b) As a condition precedent . The Company agrees not to file or make any amendment to any Registration hereunderStatement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, that refers to any Holder or Hedge Fund Party covered thereby by name, or otherwise identifies such Holder or Hedge Fund Party as the holder of any securities of the Company, without the consent of such Holder or Hedge Fund Party, as applicable, such consent not to be unreasonably withheld or delayed, unless and to the extent such disclosure is required by law. The Company may require each Hedge Fund holding, and Holder of, Registrable Securities as to which any Registration registration is being effected to furnish to the Company with such information regarding such Holder or Hedge Fund Party, as applicable, and pertinent to the disclosure requirements relating to the registration and 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 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Registration Rights Agreement (NXP Semiconductors N.V.), Registration Rights Agreement (NXP Semiconductors N.V.)
Registration Procedures. (a) In connection Whenever the Stockholder has made a Request in accordance with the Registration and/or sale of Section 5.1 that any Registrable Securities be registered pursuant to this Agreement, through the Company 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 be conducted as an Underwritten Offering or otherwiseunderwritten 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 use reasonable best efforts to effect prepare and file with the SEC a Required Registration Statement or cause Takedown Prospectus Supplement, as the Registration and case may be, providing for the sale registration under the 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 methods of disposition distribution thereof and:
specified in such Request. The Company shall use reasonable best efforts (iA) prepare and file the required to have such Required Registration Statement, including in connection with a Demand Registration, declared effective by the SEC as soon as practicable 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 exhibits and financial statements required under of the Registrable Securities Act to be filed therewithcovered by such Required Registration Statement have been sold pursuant thereto), and before including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or ProspectusRequired Shelf Registration Statement or the related 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 required by the rules, regulations 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, and (B) to keep the Shelf Registration Statement related to the Takedown Prospectus Supplement in connection with a Takedown Request continuously effective pursuant to Section 5.3, and (ii) before filing such Required Registration Statement or Takedown Prospectus Supplement, as the case may be, or any amendments or supplements thereto, (A) furnish or before using any Issuer Free Writing Prospectus related to the underwritersoffer and sale of Registrable Securities, if any, and provide to the Holders participating in such RegistrationStockholder and any managing underwriter(s) and their respective counsel, copies of all documents prepared 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 and comment 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 amendment or supplement or Issuer Free Writing Prospectus to which the Stockholder or the underwriters and such participating Holders and or their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsshall reasonably object;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus 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) as may be necessary to keep maintain the effectiveness of such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and such Takedown Prospectus Supplement for the Prospectus used applicable 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 connection therewith as may be necessary to keep such Registration Statement effective (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 comply with the provisions offer and sale of Registrable Securities and such other documents as the Securities Act with respect 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 Shares 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 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 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 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 a period ending on the 3rd anniversary after 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 and any attorney, accountant or other agent retained by the 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;
(ivk) notify if such offering of Registrable Securities is made pursuant to a Registration Statement, use reasonable best efforts to obtain “comfort” letters dated the participating Holders 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 by “comfort” letters in connection with underwritten offerings as the Stockholder, managing underwriter underwriter(s) or underwritersother 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 anyit is issued;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and (if requested) confirm such advice in writing and provide copies of the relevant documentsmake available to its security holders, as soon as reasonably practicable after notice thereof is received 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 (A) when 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 applicable 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 has been filed to be declared effective by the SEC as soon as reasonably practicable and shall file an acceleration request following the resolution or becomes effectiveclearance of all SEC comments or, or when if applicable, following notification by the applicable Prospectus SEC that any such registration statement or any amendment thereto will not be subject to review;
(p) reasonably cooperate with the Stockholder and each underwriter or supplement other purchaser participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to such Prospectus has been filedbe made with FINRA;
(q) notify in writing the Stockholder and the underwriter or other purchaser, if any, and their respective counsel of the following events as promptly as reasonably practicable:
(Bi) the filing of and effectiveness of any written comments by such Registration Statement and the SEC filing of any Issuer Free Writing Prospectus related to the offer or sale of Registrable Securities;
(ii) any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement Statement, the prospectus, the Takedown Prospectus Supplement, or such any Issuer Free Writing Prospectus related to the offer or sale of Registrable Securities or for additional information, information and when same has been filed and become effective;
(Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings by any Person for such purposes, that purpose;
(Div) if, at any time, the representations and warranties suspension of the Company registration of the subject shares of the Registrable Securities in any applicable underwriting agreement cease to be true and correct in all material respects, and state jurisdiction; and
(Ev) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering the sale under the securities or sale in blue sky Laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(vr) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 addressed to the underwriter or underwriters and, to the extent agreed requested in writing 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 lead managing underwriter(s) or other purchaser(s) with respect to any acquired company financial statements) in customary form and content for the type an underwritten offering of Underwritten OfferingEquity Securities, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Companyagree, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such Person gaining access to information directors 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in agree, to enter into customary agreements restricting the customary “road show” presentations that may be reasonably requested by sale or distribution of Equity Securities during the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect period commencing on the Registration, offering and sale date of the Registrable Securities.
request (bwhich shall be no earlier than fourteen (14) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish days prior to the Company such information regarding the distribution expected “pricing” of such securities offering) and such other information relating to such Holder, its ownership of Registrable Securities and other matters as continuing for not more than ninety (90) days after the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company date of the occurrence of any event of “final” prospectus (or “final” prospectus supplement if the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities offering is made pursuant to such a Shelf Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thStatem
Appears in 2 contracts
Sources: Stockholders Agreement (Colfax CORP), Stockholders Agreement (Circor International Inc)
Registration Procedures. (a) In connection with Whenever required under this Agreement to effect the Registration and/or sale of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseSecurities, the Company shall use its commercially reasonable best efforts to effect or cause the such Registration and to permit the sale of such Registrable Securities in accordance with the intended methods plan of disposition thereof anddistribution thereof, and pursuant thereto the Company shall, as expeditiously as reasonably possible:
(ia) prepare and file with the required Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities have ceased to be Registrable Securities;
(b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, including all exhibits and financial statements such supplements to the Prospectus, as may be reasonably requested by the Holder Representative or as may be required under 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 be filed therewith, and before filing keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the SEC intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) prior to filing a Registration Statement or Prospectus, or any amendments amendment or supplements supplement thereto, (A) furnish without charge to the underwritersUnderwriters, if any, and to the Holders participating in Holder Representative, and such RegistrationHolder Representative’s legal counsel, copies of all documents prepared such Registration Statement as proposed to be filed, which documents will be subject to the review of such underwriters each amendment and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) prepare and file with the SEC such amendments and supplements supplement to such Registration Statement (in each case including all exhibits thereto and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registrationdocuments incorporated by reference therein), 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SECStatement, 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information documents as the managing underwritersUnderwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; Holder Representative, 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;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter Representative’s legal counsel 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);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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 owned by such the Holder or underwriterRepresentative;
(xd) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its commercially reasonable best efforts to (i) register or qualify, and cooperate with each selling Holder, qualify the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale covered by the Registration Statement under the such securities or “blue sky” laws of each state and other jurisdiction of such jurisdictions in the United States as any selling Holder or managing underwriter or underwriters, if any, or the Holders of Registrable Securities included in such Registration Statement (in light of their respective counsel intended plan of distribution) may reasonably request in writing (or 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 reasonably that may be necessary or advisable to keep such registration or qualification enable the Holders of Registrable Securities included in effect for so long as such Registration Statement remains in effect and so as to permit consummate the continuance disposition of sales and dealings such Registrable Securities 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 Statementjurisdictions; 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 taxation or general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(xie) in connection with any sale of Registrable Securities that will result in cause all such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 national securities exchange or automated quotation system on which any of similar securities issued by the Company’s securities Company 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 Securitieslisted;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviif) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by the applicable Registration Statement from and after a date not no later than the effective date of such Registration Statement;
(xviiig) cause all Registrable Securities covered by notify each participating Holder, as soon as practicable after the applicable Company receives notice thereof, but in any event within one business day of such date, of the time when the Registration Statement to be listed on each securities exchange on which any of has been declared effective and 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 effectiveness of any required supplemental listing applicationpost-effective amendment thereto;
(xixh) provide (A) advise each Holder participating in the Registrationseller of such Registrable Securities, (B) the underwriters (which term, for purposes of this Agreement, promptly after it shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if anyreceive notice or obtain knowledge thereof, of the Registrable Securities to be Registered, (C) issuance of any stop order by the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, Commission suspending the opportunity to participate in the preparation effectiveness of such Registration Statement, each Prospectus included therein Statement or filed with the SEC, initiation or threatening of any proceeding for such purpose and each amendment promptly use its commercially reasonable efforts to prevent the issuance of any stop order or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of obtain its withdrawal if such Holder(s) and their counsel stop order should be included; and for a reasonable period 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, make available upon reasonable notice at reasonable times as then in effect, includes a Misstatement;
(k) in the event of an Underwritten Offering, (i) permit the Demanding Holder, the Underwriters or other financial institutions facilitating such Underwritten Offering, if any, and for reasonable periods for inspection any attorney or accountant retained by the parties referred Demanding Holder, Underwriter or other financial institution to participate, at each such person’s own expense, in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties the preparation of the Company that are available to the Company, and Registration Statement; (ii) cause the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such Registration Statement as shall be necessary representatives or Underwriters, financial institution, attorney or accountant agree to enable them to exercise their due diligence responsibility, subject confidentiality arrangements reasonably satisfactory to the foregoingCompany, provided that prior to the release or disclosure of any such Person gaining access to information or personnel information;
(l) obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request;
(m) in the event of an Underwritten Offering, on the date the Registrable Securities are delivered for sale pursuant to this Section 2.04(a)(xix) shall agree to use reasonable efforts to protect the confidentiality such Registration, obtain an opinion, dated such date, of any information regarding 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 Company determines Demanding Holder or Underwriter may reasonably request and as are customarily included in good faith to be confidentialsuch opinions and negative assurance letters, and reasonably satisfactory to the Demanding Holder;
(n) in the event of which determination such Person is notifiedan Underwritten Offering, unless (x) enter into and perform its obligations under an underwriting agreement, in usual and customary form consistent with the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (y) such information is or becomes publicly known without a breach terms of this Agreement, (F) with the managing Underwriter of such information is offering or becomes available to such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Personsale;
(xxo) make available to cause its shareholders, as soon as reasonably practicable, an earnings statement covering the executive officers period of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
(p) in the event of an Underwritten Shelf Takedown pursuant to Section 2(f), use its reasonable efforts to make available senior executives of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter 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 fee at such time or underwriters in 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 Underwritten Offering time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, the Company shall use its reasonable best efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and otherwise keep such registration statement effective during the period during which such registration statement is required to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretobe kept effective; and
(xxir) otherwise, in good faith, cooperate reasonably with, and take all other such customary steps actions as may reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing be requested by the Company that the use of the Prospectus may be resumedHolders, and if so directed by the Company, in connection with such Holder will deliver to the Company (at the Company’s expense) all copies, other thRegistration.
Appears in 2 contracts
Sources: Merger Agreement (Stock Yards Bancorp, Inc.), Registration Rights Agreement (Stock Yards Bancorp, Inc.)
Registration Procedures. (a) In connection with the Registration and/or sale Whenever Executive has requested that any of Executive’s Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company Corporation shall use reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Corporation shall as expeditiously as possible:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(iia) prepare and file with the SEC Securities and Exchange Commission a registration statement with respect to such Registrable Securities and use reasonable best efforts to cause such registration statement to become effective as soon as practicable thereafter, in each case in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder;
(b) notify in writing Executive of the effectiveness of each registration statement filed hereunder and prepare and file with the Securities and Exchange Commission such amendments, post-effective amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the Shares Registered thereonsellers thereof set forth in such registration statement;
(iiic) in the case furnish to Executive a number 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date copies of such Registration Statement;
(iv) notify the participating Holders registration statement, each amendment and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any timethereto, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus prospectus included in such Registration Statement (as then in effect) contains any untrue registration statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto prospectus), each Free-Writing Prospectus (as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, defined in connection with the offering and sale Rule 405 of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoAct) and such other documents as such selling Holder or underwriter Executive may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterExecutive;
(xd) on promptly notify in writing Executive, 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 (i) contains an untrue statement of a material fact or prior 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 date 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 applicable Registration Statement is declared 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 becomes effectivefacilitate the disposition of Registrable Securities (including, without limitation, a stock split or combination);
(h) otherwise use its reasonable best efforts to register or qualify, and cooperate comply with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 applicable rules and regulations of each the Securities and Exchange Commission;
(i) 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 equity securities included in such exchangeregistration statement for sale in any jurisdiction, and the Corporation shall use its reasonable best efforts promptly to obtain the withdrawal of such order;
(j) use 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiik) 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 Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not later than 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;
(l) obtain one or more “cold comfort” letters, dated the effective date of the applicable Registration Statementsuch registration statement (and, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) in the case of if such registration includes 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 underwritten Public Offering, dated the date of the closing under the underwriting agreement;
(xv) in the case of an Underwritten Offering, obtain for delivery to agreement and addressed to the underwriter or underwriters andunderwriters), to from the extent agreed by the CompanyCorporation’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 covering such matters of the type customarily covered by such letters as the holders of Underwritten a majority of the Registrable Securities being sold in such registered offering reasonably request;
(m) provide a legal opinion of the Corporation’s outside counsel, dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;agreement and addressed to the underwriters), 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 of such nature; and
(xvin) cooperate with Executive to facilitate the timely preparation and delivery of certificates (or electronic notation through the 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 The Depository Trust Corporation's Direct Registration Statement, an earnings statement satisfying the provisions of Section 11(aSystem) 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of representing the Registrable Securities to be Registered, (C) the sale sold pursuant to such registration statement or placement agent therefor, if any, (D) counsel for Rule 144 free of any restrictive legends and representing such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by number of shares of common stock registered in such Holder or any such underwriter, names as selected by such Holder, the opportunity to participate Executive may reasonably request in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period of time prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition sales of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented registration statement or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thRule 144.
Appears in 2 contracts
Sources: Executive Employment Agreement (Aquestive Therapeutics, Inc.), Executive Employment Agreement (Aquestive Therapeutics, Inc.)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act pursuant to the provisions of this Agreement, through an Underwritten Offering or otherwise, the Company shall use its reasonable best efforts to effect or cause the Registration of the offer and the sale of such Registrable Securities under the Securities Act in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall, as applicable:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC as soon as is reasonably practicable a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish covering such Registrable Securities and use its reasonable best efforts to the underwriters, if any, and to the Holders participating in cause such Registration, copies of all documents prepared Registration Statement to be filed, which documents will be subject to the review of declared effective and remain effective until all Registrable Securities covered by such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsRegistration Statement have been sold;
(iib) prepare and file with the SEC such amendments, post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the terms intended plan of this Agreement distribution set forth in such Registration Statement or supplement to the Prospectus and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) such Registrable Securities in the case of a Shelf Registration, prepare and file accordance with the SEC such amendments and supplements to such Registration Statement and the Prospectus used intended methods of disposition set forth in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable prior to filing a Registration Statement or any amendment thereto has been filed or becomes effectiveProspectus, or when the applicable Prospectus or any amendment or supplement thereto, furnish without charge to the holders of Registrable Securities included in such Prospectus has been Registration (or counsel designated by the majority-in-interest of the participating holders) copies of such Registration Statement as proposed to be filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements each amendment and supplement to such Registration Statement or such Prospectus or for additional information(in each case including all exhibits thereto and documents incorporated by reference therein), (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters), if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as the underwriters and the holders of Registrable Securities included in such selling Holder or underwriter Registration may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder holders. It is understood that the foregoing documents will be subject to the review of such holder or underwritersuch counsel (it being acknowledged and agreed that if a holder does not object to or comment on the aforementioned documents within such two Business Days then the holder shall be deemed to have consented to and approved the use of such documents);
(xd) on or prior to notify each selling holder of Registrable Securities, promptly after the date on which Company receives notice thereof, of the applicable time when such Registration Statement is has been declared effective or becomes effectivea supplement to any Prospectus forming a part of such Registration Statement has been filed with the SEC;
(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 reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel holder reasonably request in writing requests and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as holders to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 or business, subject itself to take any action which would subject it to general taxation or 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);
(xig) in connection with any sale notify each selling holder 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 at any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 time when a Prospectus relating thereto is required to be retained in accordance with delivered under the rules and regulations Securities Act, of each such exchange, and use its reasonable best efforts to the happening of any event that would cause the Registrable Securities covered by the applicable Prospectus included in such Registration Statement to be registered with contain an untrue statement of a material fact or approved by 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 other governmental agencies holder, the Company shall prepare a supplement or authorities amendment to such Prospectus so that, as may be necessary thereafter delivered to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition 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;
(xiiih) not later than the effective date make available for inspection by any selling holder of the applicable Registration StatementRegistrable Securities, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are any underwriter participating 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery any disposition pursuant 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 such 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such holder or 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person 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 and provide a CUSIP number for all such Registrable Securities, in each case not later than 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 Statement as or Prospectus or for additional information;
(m) advise the holders of Registrable Securities, promptly after it shall be necessary to enable them to exercise their due diligence responsibilityreceive notice or obtain knowledge thereof, subject to of the foregoing, provided that issuance of any stop order by the SEC suspending the effectiveness of such Person gaining access to information Registration Statement or personnel pursuant to this Section 2.04(a)(xix) shall agree to the initiation or threatening of any proceeding for such purpose and promptly use its reasonable efforts to protect prevent the confidentiality issuance of any information regarding stop order or to obtain its withdrawal at the Company which the Company determines in good faith to earliest possible moment if such stop order should 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoissued; and
(xxin) otherwise, in good faith, cooperate reasonably with, and take all other such customary steps actions as may reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing be requested by the Company that the use of the Prospectus may be resumedholders, and if so directed by the Company, in connection with such Holder will deliver to the Company (at the Company’s expense) all copies, other thRegistration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Female Health Co), Merger Agreement (Female Health Co)
Registration Procedures. (a) In connection Whenever the Purchaser has made a Request in accordance with the Registration and/or sale of Section 6.1 that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause will:
(a) not later than the Registration and 30th calendar day 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 methods of disposition distribution thereof and:
specified in such Request or requests, and 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 keep such Required Registration Statement or Required Shelf Registration Statement, as the case may be, continuously effective (i) prepare and file in the required 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 StatementStatement is declared effective (or such shorter period which will terminate when all of the Registrable Securities covered by such Required Registration Statement have been sold pursuant thereto) or (ii) in the case of a Shelf Registration, including until such time as all exhibits and financial statements required under the Registrable Securities Act to be filed therewithcovered by such Required Shelf Registration Statement have been sold pursuant thereto, and before including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or ProspectusRequired Shelf Registration Statement or the related 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 required by the rules, regulations 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 amendments or supplements thereto, (A) furnish to the underwriters, if any, rules and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsregulations thereunder;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of securities covered by such Registration Statement for the Shares Registered thereonperiod set forth in (a) above;
(iiic) 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 case 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 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 Shelf Registrationmaterial 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 file with take all such other actions as the SEC Purchaser or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such amendments and supplements 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 Prospectus used Purchaser or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by the Purchaser or any underwriter, attorney, accountant or agent in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivj) notify if such sale is pursuant to an underwritten offering, use reasonable best efforts to obtain “comfort” letters dated the participating Holders 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;
(if requestedl) confirm such advice in writing and provide copies use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the relevant documentsRegistration Statement 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 notice thereof is received by the Company (A) when effective date of the applicable Registration Statement or any amendment thereto has been filed or becomes effectiveStatement, or when an earnings statement covering the applicable Prospectus or any amendment or supplement to such Prospectus has been filedperiod 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, (Bwhich 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 written comments by filings required to be made with Financial Industry Regulatory Authority;
(o) promptly notify in writing the SEC or Purchaser and the underwriter, if any, of the following events:
(i) the effectiveness of any such Registration Statement;
(ii) any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such Prospectus the prospectus or for additional information, information and when same has been filed and become effective;
(Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings by any person for such purposes, that purpose; and
(Div) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering the sale under the securities or sale in blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(vp) promptly notify each selling Holder if requested by any underwriter, agree, and the managing underwriter or underwriters, if any, when cause the Company becomes aware and any directors or officers of the occurrence Company to agree, to be bound by customer “lock-up” agreements restricting the ability to dispose of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act Company securities; 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;
(viq) use its reasonable best efforts to prevent or obtain take all other steps reasonably necessary to effect the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale registration of the Registrable Securities covered by such Prospectus or contemplated hereby. If 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long comparable statement refers to the Purchaser by name or otherwise as such Registration Statement remains in effect and so as to permit the continuance holder of sales and dealings in such jurisdictions any securities of the United States for so long as may Company and if in its sole and exclusive judgment, the Purchaser is or might 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities deemed to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if any, on which any a controlling person 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in Purchaser will have the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and right to require (i) the insertion therein of materiallanguage, furnished in form and substance satisfactory to the Purchaser and presented to the Company in writing, which in to the reasonable judgment effect that the holding by the Purchaser of such Holder(s) and their counsel should securities is not to be included; and for construed as a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection recommendation by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties Purchaser of the Company that are available to the Company, and cause investment quality of the Company’s officers, employees securities covered thereby and that such holding does not imply that the independent public accountants who have certified its Purchaser will assist in meeting any future financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business requirements of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (zii) in the event that such information reference to the Purchaser by name or otherwise is independently developed not required by such Person;
(xx) to cause the executive officers Securities Act or any similar federal statute then in force, the deletion of the Company reference to participate in the customary “road show” presentations Purchaser; provided that may be reasonably requested by with respect to this clause (ii) the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder 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 such other information relating to such Holder, its ownership of Registrable Securities and other matters affidavits as the Company may from time to time reasonably request requests specifically for use in writing. Each such Holder agrees to furnish such information to the Company and to cooperate connection with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thprospectus.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Coca Cola Co), Common Stock Purchase Agreement (Green Mountain Coffee Roasters Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise----------------------- Company's registration obligations under Section 2.1 hereof, the Company shall use reasonable best efforts effect such registrations to effect or cause the Registration and permit the sale of such the Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Company shall as expeditiously as possible:
(ia) prepare Prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or ProspectusRegistration 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 use its reasonable efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided, that before filing -------- any such Registration Statement or Prospectus or any amendments or supplements thereto, thereto (Aother than documents that would be incorporated or deemed to be incorporated therein by reference and that the Company is required by applicable securities laws or stock exchange requirements to file) the Company shall furnish to the underwritersInitial Stockholders, the Initiating Holders, the Special Counsel and the Managing Underwriters of such offering, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters the Initial Stockholders, the Initiating Holders, the Special Counsel and such participating Holders and their respective counselManaging Underwriters, and the Company shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (Bother 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) consider in good faith any comments to which the holders of a majority of the underwriters and Registrable Securities covered by such Registration Statement, the Initial Stockholders, the Initiating Holders and their respective counsel on such documents;or the Special Counsel shall reasonably object in writing within two full Business Days.
(iib) prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in accordance with Section 2.1; cause the terms of this Agreement 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 of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and during the Prospectus used applicable period in connection therewith as may be necessary to keep accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of as so amended or such Registration Statement;Prospectus as so supplemented.
(ivc) notify Notify the participating Holders selling Series B Securityholders, the Initial Stock holders, the Initiating Holders, the Special Counsel and the managing underwriter or underwritersManaging Underwriters, if any, promptly, and (if requestedrequested by any such person) confirm such advice notice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when a Prospectus, any Prospectus supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filed with the applicable SEC, and, with respect to a Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority federal or state governmental authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, and of the contents of such request, (Ciii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiv) 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 offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
, (v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence existence of any fact or happening of any event as which makes any statement of a result of which the applicable Registration Statement or the Prospectus included material fact in such Registration Statement (as then or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which would require the making of any changes in effect) contains the Registration Statement or Prospectus in order that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (not misleading, and that in the case of such Prospectus and any preliminary 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 ormisleading, provided that -------- the Company shall not be required to disclose such fact or event if for any other reason it shall be necessary during such time period to amend fact 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 SECevent has not been publicly disclosed, 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;
(vi) use its of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) Use all reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of a Registration Statement, or the lifting of any preliminary suspension of the qualification (or final Prospectus;exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment.
(viie) If reasonably requested by an Initial Stockholder, the Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or the holders of a majority of the Registrable Securities being sold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the managing underwritersInitial Stockholders, the Initiating Holders, the Special Counsel, the Managing Underwriters, if any, and the Holders may reasonably request to or such holders, in connection with any offering of Registrable Securities, agree should be included therein in order to permit the intended method of distribution of the Registrable Securities; as required by applicable law, and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon promptly as reasonably is practicable after being notified 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.
(viiif) furnish Furnish to each selling Holder Series B Securityholder, the Special Counsel, the Initial Stockholders, and each underwriterManaging Underwriter, if any, without charge, as many at least one conformed copies as such Holder or underwriter may reasonably request copy of the applicable Registration Statement or Statements and any amendment or 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);.
(ixg) deliver Deliver to each selling Holder holder of Registrable Securities, the Special Counsel, the Initial Stockholders, and each underwriterManaging Underwriter, if any, in connection with any offering of Registrable Securities, without charge, as many copies of the applicable Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter persons may reasonably request (it being understood that request; and the Company hereby consents to the use of such Prospectus or any each amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;.
(xh) on or prior Prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling HolderSeries B Securityholders, the managing underwriter or 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 each state and other jurisdiction of such jurisdictions within the United States as any selling Holder Series B Securityholder or managing underwriter or underwriters, if any, or their respective counsel Managing Underwriter reasonably request 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 reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in suits or to taxation in any such jurisdiction where it is not then so subject;.
(xii) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or underwritersManaging Underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiiij) 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 later than 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 effective date statements therein, in the light of the applicable 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, provide a CUSIP number for use all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;reasonable efforts to cause it to become effective as promptly as is practicable.
(xivk) Enter into such agreements (including, in the case event of an Underwritten Offering, obtain for delivery 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 addressed 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 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 's ability to and addressed to the underwriter or underwriters anddo so, to the extent agreed 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 Company’s independent certified public accountantssame 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 selling Holder, a comfort letter 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 Company’s independent certified public accountants (and the independent certified public accountants with respect of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or any business acquired or to any be acquired company by the Company for which financial statements) 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 content for covering matters of the type of Underwritten Offering, including with comfort customarily covered in "comfort" letters customarily delivered in connection with quarterly period financial statements 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 applicableany, dated to evidence the date continued validity of execution 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 and brought down to or other agreement entered into by the closing under the underwriting agreement;Company.
(xvil) use 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 being 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 best efforts written assurances by each such person that such information will only be used in connection with matters relating to comply such Registration Statement.
(m) 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 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 rules 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 regulations promulgated thereunder and covering the period of at least 12 months(ii) if not sold to underwriters in such an offering, but not more than 18 months, beginning with commencing on the first month day of the first fiscal quarter of the Company commencing after the effective date of the a Registration Statement;, which statements shall cover said 12-month periods.
(xviin) provide Cooperate with the selling Series B Securityholders to facilitate the timely preparation 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 delivery 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the certificates representing Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, sold and (E) not bearing any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be includedrestrictive legends; and for a reasonable period prior to the filing of enable such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 Registrable Securities to be confidential, in such denominations and of which determination registered in 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters names as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thselling 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 Whenever the Registration and/or sale of Holders request that any Registrable Securities Common Stock be registered pursuant to this Agreement, through an Underwritten Offering Agreement or otherwisethe Mandatory Shelf Registration is required to be provided, the Company shall use its reasonable best efforts to effect or cause and maintain the Registration registration and the sale of such Registrable Securities Common Stock in accordance with the intended methods of disposition thereof andthereof, and pursuant thereto the Company shall as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement with respect to such Registrable Common Stock in accordance with the filing requirements set forth in paragraphs (a) and (b) of Section 2 hereof, subject to Section 2(c) hereof, and use its best efforts to cause any such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) furnish to the Holders of Registrable Common Stock covered by such Registration Statement and the underwriter or underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which including, if requested by such Holders, documents will be subject to incorporated by reference in the review of Prospectus and, if requested by such underwriters Holders, the exhibits incorporated or deemed incorporated by reference, and such participating Holders shall have the opportunity to object to any information pertaining to such Holders that is contained therein and their respective counsel, and (B) consider in good faith the Company will make the corrections reasonably requested by such Holders with respect to such information prior to filing any comments of the underwriters and Holders and their respective counsel on such documentsRegistration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) 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 in accordance with as is necessary to complete the terms distribution of this Agreement the securities covered by such Registration Statement and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Common Stock (without charge) 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 Common Stock owned by such seller, and the Company consents to the use of such Prospectus, including each preliminary Prospectus, by Holders of Registrable Common Stock, in connection with the offering and sale of Registrable Common Stock covered by any such Prospectus;
(d) use its reasonable best efforts to register or qualify such Registrable Common Stock 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 such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock 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 (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction unless the Company is already subject to such service);
(e) notify each seller of such Registrable 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 as 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 amendment to such Registration Statement so that, as thereafter delivered to the purchasers of such Registrable Common Stock, 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;
(f) in the case of an Underwritten Offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as the Holders of a Shelf Registrationmajority of number of shares of the Registrable Common Stock being sold or the underwriters, prepare if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock, including making executive officers of the Company available to participate in, and file cause them to cooperate with the SEC underwriters in connection with, "road-show" and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Common Stock), (iii) cause to be delivered to the underwriters and the sellers, if any, opinions of counsel to the Company in customary form, covering such amendments matters as are customarily covered by opinions for an underwritten public offering as the underwriters may request and supplements 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 Registration Statement managing underwriters, customary lock-up agreements of the Company and the Prospectus used its officers and directors, in connection therewith as may be each case for a period not to exceed 30 days plus any extensions necessary to keep such Registration Statement effective and to comply with the provisions rules and regulations of the Securities Act Financial Industry Regulatory Authority, Inc.;
(g) subject to receipt of reasonably acceptable confidentiality agreements, make available, for inspection by a representative of a seller of Registrable Common Stock, 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 and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with respect such 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 disposition of same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company;
(i) provide a transfer agent and registrar for all Shares subject thereto such Registrable Common Stock and provide a CUSIP number for a period ending on the 3rd anniversary after all such Registrable Common Stock not later than the effective date of such Registration Statement;
(ivj) notify if requested, cause to be delivered, immediately prior to the participating Holders 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 managing 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 independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be;
(k) make generally available to its stockholders 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 statement shall satisfy the requirements of an earnings statement under Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) cooperate with each selling Holder of Registrable Common Stock and each underwriter participating in the disposition of such Registrable Common Stock and their respective counsel in connection with any filings required to be made with the 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 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, and :
(if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable Registration Statement, pre-effective 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 amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such Prospectus or for additional information, Prospectus;
(Ciii) 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 such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, Statement; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiv) 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 Registrable Securities for offering applicable securities or sale in any jurisdiction or the initiation or threatening blue sky laws of any proceeding for such purposejurisdiction;
(vo) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when at all times after the Company becomes aware has filed a registration statement with the SEC pursuant to the requirements of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with either the Securities Act andor the Exchange Act, 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder shall file all reports and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist in any filings required to be made with filed by it under 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders Act 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 Exchange Act and the rules and regulations promulgated thereunder adopted by the SEC thereunder, and covering take such further action as any Holders may reasonably request, all to 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 extent required to enable such Holders to be maintained a transfer agent and registrar for all eligible to sell 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoRule 144; and
(xxip) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As as a condition precedent to being included in any Registration hereunderStatement, the Company may require each Holder seller of Registrable Common Stock as to which any Registration registration is being effected to furnish to the Company such any other information regarding such seller and 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 such Holder seller of Registrable Common Stock agrees to furnish such information to the Company and to cooperate with the Company by having its stock treated as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Holder agrees, Registrable Common Stock hereunder that, upon receipt of any written notice from the Company of the occurrence happening of any event as a result of which the kind described Prospectus included in Section 2.04(a)(vsuch 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 pursuant to such Registration Statement Common Stock until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder seller is advised in writing by the Company that the use of the Prospectus may be resumedresumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 4(e) hereof, and 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 's expense) all copies, other ththan permanent file copies then in such seller's possession, of the Prospectus covering such Registrable 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. If the Company shall give any notice to suspend the disposition of Registrable Common Stock pursuant to a Prospectus, the Company shall extend the period of time during which the Company is required to maintain the Registration Statement effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date such seller either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus. In any event, the Company shall not be entitled to deliver more than three (3) Suspension 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. (a) In connection At such time as the Company is obligated to file a Registration Statement with the Registration and/or sale of Registrable Securities SEC pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 2, the Company shall will use commercially reasonable best efforts to effect or cause the Registration and registration of the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
a. The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) prepare and file the required date as of which each Investor may sell all of the Registrable Securities covered by such Registration Statement, including all exhibits and financial statements required Statement without restriction pursuant to Rule 144 (or any successor thereto) promulgated under the Securities 1933 Act to be filed therewith, and before filing with is not otherwise prohibited by the SEC a or any statute, rule, regulation or other applicable law from selling any such Registrable Securities pursuant to such Rule or (ii) the date on which each Investor shall have sold all of the Registrable Securities covered by such Registration Statement or Prospectus, or (the “Registration Period”). The Company shall use commercially reasonable efforts to ensure that each Registration Statement (including any amendments or supplements thereto, (Athereto and prospectuses contained therein) furnish shall not contain any untrue statement of a material fact or omit to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared state a material fact required to be filedstated therein, which documents will be subject or necessary to make the review statements therein (in the case of such underwriters and such participating Holders and their respective counselprospectuses, and (B) consider in good faith any comments the light of the underwriters and Holders and their respective counsel on such documents;circumstances in which they were made) not misleading.
(ii) b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to such a Registration Statement and the Prospectus prospectus used in connection therewith with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective in accordance with at all times during the terms of this Agreement and to Registration Period, and, during such period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Shares Registered thereon;
(iii) Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of a Shelf Registration, prepare and file with the SEC such 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 Company 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 Prospectus used 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 connection therewith 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 keep 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 Statement effective Period, and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify take all other actions reasonably necessary or advisable to qualify the participating Holders and the managing underwriter or underwritersRegistrable Securities for sale in such jurisdictions; provided, if anyhowever, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by that the Company shall not be required in connection therewith or as a condition thereto to (Ax) when the applicable Registration Statement or qualify to do business in any amendment thereto has been filed or becomes effectivejurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or when the applicable Prospectus or any amendment or supplement (z) file a general consent to such Prospectus has been filed, (B) service of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company process in any applicable underwriting agreement cease to be true such jurisdiction. The Company shall promptly notify Legal Counsel and correct in all material respects, and (E) 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 offering sale under the securities or sale in “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;.
(v) f. The Company shall notify Legal Counsel and Investors in writing of the happening of any event, as promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes as practicable after becoming aware of the occurrence of any event such event, as a result of which the applicable Registration Statement or the Prospectus prospectus included in such a Registration Statement (Statement, as then in effect) contains any , includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) , not misleading or(provided that in no event shall such notice contain any material, 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 nonpublic information), and, in either case as subject to Section 3(o), promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter a supplement or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will to correct such untrue statement or omission omission, and deliver ten (10) copies of such supplement or effect amendment to Legal Counsel and Investors (or such compliance;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.
(vi) g. The Company shall use its commercially reasonable best efforts to prevent or obtain the withdrawal issuance of any stop order or other order suspending suspension of effectiveness of a Registration Statement, or the use suspension of the qualification of any preliminary of the Registrable Securities for sale in any jurisdiction and, if such an order or final Prospectus;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 threat of any proceeding for such purpose.
h. The Company shall notify the 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 (viiprovided 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 (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 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 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 Investors and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investors may reasonably request and registered in such names as the Investors may request.
l. If requested by an Investor, the Company shall (i) as soon as practicable incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may Investor reasonably request requests to be included therein in order relating to permit the intended method sale and distribution of distribution Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable SecuritiesSecurities 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 reasonably practicable after being notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;
; and (viiiiii) furnish as soon as practicable, supplement or make amendments to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable any Registration Statement and if reasonably requested by an Investor holding any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the .
m. The Company may satisfy its obligations hereunder without issuing physical stock certificates through the shall use of The Depository Trust Company’s Direct Registration System;
(xii) 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 commercially reasonable 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiii) not later than the effective date of the applicable Registration Statement, 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 n. The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the shall otherwise use of The Depository Trust Company’s Direct Registration System;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available in connection with any registration hereunder.
o. Notwithstanding anything to its security holdersthe contrary herein, as soon as reasonably practicable, but no later than 90 days at any time after the end 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 12Board 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-month 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 (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 beginning with such Grace Periods shall not exceed an aggregate of one hundred twenty (120) days and the first day of the Company’s first quarter commencing any Grace Period must be at least two (2) trading days after the effective 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 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 3(g) hereof shall not be applicable during the period of any Allowable 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 an Investor in connection with any sale of Registrable Securities with respect to which such Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration Statement, Statement (unless 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 exemption 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Actprospectus delivery requirements exists), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such HolderInvestor’s receipt of the copies notice of a Grace Period and for which the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thInvestor has not 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. (a) In connection with If and whenever the Registration and/or sale Corporation is required to effect the registration of any Registrable Securities pursuant to under the Securities Act as provided in this Agreement, through an Underwritten Offering or otherwise, the Company Corporation shall use its reasonable best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(ia) prepare Prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement on any form which shall be available for the sale of the Registrable Securities by the Holders thereof or Prospectusthe Corporation in accordance with the intended method or methods of distribution thereof (including a Partner Distribution), and use its commercially reasonable efforts to cause such Registration Statement to become effective 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), (A) the Corporation shall furnish or otherwise make available to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will shall be subject to the review and comments of such underwriters Holders, counsel and managing underwriters. With respect to a Demand Registration that covers the Registrable Securities of a Holder, such participating Holders Holder and their respective counselits 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 SEC, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on Corporation will make the corrections reasonably requested by such documents;Holder prior to such filing with the SEC.
(iib) prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective during the period provided herein and comply in accordance all material respects with the terms provisions of this Agreement the Securities Act with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; provided that any Holder of 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 Shares Registered thereonCorporation shall promptly either withdraw such Registration Statement or file a post-effective amendment to such Registration Statement removing such Registrable Securities.
(c) Notify each selling Holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing:
(i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective;
(ii) of any 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;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority federal or state governmental authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, ;
(Civ) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose;
(Dv) if, if at any time, time the representations and warranties of the Company Corporation contained in any applicable agreement (including any underwriting agreement agreement) contemplated by Section 2.5(o) cease to be true and correct in all material respects, and correct;
(Evi) 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 offering or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose;; and
(vvii) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which the applicable Registration Statement or the Prospectus included that makes any statement made in such Registration Statement (as then or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in effect) contains any material respect or 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 omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made) , not misleading ormisleading, if for and that in the case of the Prospectus, it will not contain any other reason it shall be untrue statement of a material fact or omit to state any material fact necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with make the Securities Act andstatements therein, in either case as promptly as reasonably practicable thereafterlight of the circumstances under which they were made, prepare and file with not misleading.
(d) Use its commercially reasonable efforts to obtain the SECwithdrawal of any order suspending the effectiveness of a Registration Statement, and furnish without charge to or the selling Holder and lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) If requested by the managing underwriter or underwriters, if any, or any Holder of Registrable Securities being sold in connection with an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) Underwritten Offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the such Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in Corporation has received such Prospectus supplement or post-effective amendment;request.
(viiif) furnish Furnish or make available to each selling Holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, as many at least five conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement Statement, the Prospectus and any amendment or 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);.
(ixg) deliver Deliver to each selling Holder of Registrable Securities, its counsel and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus or Prospectuses (including each preliminary form of Prospectus) and any each amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that in connection with the Company distribution of the Registrable Securities; and the Corporation, subject to the last paragraph of this Section 2.5, hereby consents to the use of such Prospectus or any and each amendment or supplement thereto by each of the selling Holder Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or and any such 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;.
(xh) on or prior Prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify, and qualify or cooperate with each the selling HolderHolders of Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel, 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 each state and other jurisdiction of such jurisdictions within the United States as any selling Holder seller or managing underwriter reasonably requests and to keep each such registration or underwriters, if any, qualification (or their respective counsel reasonably request in writing exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do to take any and all other acts or things reasonably action that may be necessary or advisable to keep enable such registration or qualification in effect for so long as Holders of Registrable Securities to consummate the disposition of such Registration Statement remains in effect and so as to permit the continuance of sales and dealings Registrable Securities 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 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 taxation or general service of process in any such jurisdiction where it is not then so subject;.
(xii) in connection Unless the Registrable Securities to be sold are uncertificated, cooperate with any sale the selling Holders 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 (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register 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 such selling Holder or the underwriter(s)managing underwriters, if any, or Holders may request at least two Business Days prior to such any sale of Registrable Securities; provided that Securities in a firm commitment public offering, but in any other such sale, within ten Business Days prior to having to issue the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;securities.
(xiij) 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 Use its commercially 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiiik) Upon the occurrence of any event contemplated by Section 2.5(c)(vii), prepare a supplement or 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 file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not later than 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 light of the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the applicable Registration StatementStatement relating to the Registrable Securities, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;Securities.
(xivm) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable such Registration Statement from and after a date not later than the effective date of such Registration Statement;.
(xviiin) Use its commercially reasonable efforts to cause all shares of Registrable Securities covered by the applicable such Registration Statement to be authorized to be listed on each a national securities exchange if shares of that particular class of Registrable Securities are at that time listed on which any such exchange.
(o) In connection with an Underwritten Offering, enter into such customary 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 the Company’s Common Stock are then listed Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or quoted facilitate the disposition of such Registrable Securities, 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;in such connection:
(xixi) provide (A) each Holder participating in make such representations and warranties to the Registration, (B) Holders of such Registrable Securities and the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in Underwritten Offerings, and, if true, confirm the same if and when requested;
(ii) use its commercially reasonable efforts to furnish to the selling Holders of the such Registrable Securities opinions of counsel and a negative assurance letter from counsel to the Corporation and updates thereof (which counsel, opinions and letter (in form, scope and substance, in the case of such opinions and such letter) shall be Registeredreasonably satisfactory to the selling Holders of such Registrable Securities, (C) the sale or placement agent thereformanaging underwriters, if any, (D) counsel for and counsels to the selling Holders of the Registrable 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 underwriters or agent, and (E) any attorney, accountant or other agent or representative retained matters as may be reasonably requested by such Holder Holders, counsel and underwriters;
(iii) use commercially reasonable efforts to obtain “cold comfort” letters and updates thereof from the 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 such underwriterbusiness acquired by the Corporation for which financial statements and financial data are, as selected by such Holderor are required to be, the opportunity to participate included in the preparation of Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each Prospectus included therein or filed selling 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 in connection with Underwritten Offerings, which form and substance shall be acceptable to the selling Holders of the Registrable Securities;
(iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 with respect to all parties to be indemnified pursuant to Section 2.7; and
(v) deliver such documents and certificates as may be reasonably requested by any Holder of Registrable Securities being 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 the SECconditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, and each amendment or supplement thereto, as and to require the insertion therein of material, furnished to extent required thereunder.
(p) To the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statementextent not prohibited by applicable Law, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to selling Holders of Registrable Securities, any underwriter participating in (A) through (E) aboveany such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling Holders or underwriter, at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the CompanyCorporation and its subsidiaries, and cause the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company Corporation and its subsidiaries to supply all information available to the Company in each case reasonably requested by any such Person Holder, underwriter, attorney or accountant in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, Statement; provided that any if (1) the Corporation believes after consultation with counsel for the Corporation, that to do so would cause the Corporation to forfeit an attorney-client privilege that was applicable to such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix(2) 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 either (x) the release Corporation has requested and been granted from the SEC confidential treatment of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thco
Appears in 2 contracts
Sources: Registration Rights Agreement (ZAIS Group Holdings, Inc.), Investment Agreement (Hf2 Financial Management Inc.)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the The Company shall use all reasonable best efforts to effect or cause the Registration and such registration to permit the sale of such the Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Company shall as expeditiously as practicable:
(i) prepare and file with the required SEC, as soon as practicable, the Registration StatementStatement on an appropriate registration form, including which Registration Statement shall comply as to form in all exhibits material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required under by the Securities Act SEC to be filed therewiththerewith or incorporated by reference therein, and before filing with in either case use all reasonable efforts to cause the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, become effective and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsremain effective;
(ii) prepare and file with the SEC such amendments and supplements post-effective amendments to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement effective in accordance with for the terms of this Agreement applicable period, or such shorter period which shall terminate when all Registrable Securities covered by the Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and to be filed pursuant to Rule 424 promulgated under the Securities Act and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Shares Registered thereonSelling Shareholders set forth in the Registration Statement or supplement to the Prospectus;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders Selling Shareholders and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such person) confirm such advice in writing and provide copies of the relevant documentspromptly, as soon as reasonably practicable after notice thereof is received by the Company (A1) when the applicable 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 thereto thereto, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B2) of any written comments by of the SEC or any state securities authority with regard to the Registration Statement and of any request by the SEC or any other Governmental Authority state securities authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, (C3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E4) 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;
, (v5) promptly notify each selling Holder in the case of any shelf Registration Statement, if between the effective date of a Registration Statement and the managing underwriter or underwritersclosing of any sale of Registrable Securities covered thereby, if any, when the representations and warranties of the Company becomes aware 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 occurrence happening of any event as a result of which the applicable Registration Statement or the discovery of any facts that makes any statement made in the Registration Statement, the Prospectus included or any document incorporated therein by reference untrue in such any material respect or which requires the making of any changes in the Registration Statement (as then Statement, the Prospectus or any document incorporated therein by reference in effect) contains any order to make the statements therein not contain an untrue statement of a material fact or omits omit to state a any material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(viiv) use its reasonable best efforts to prevent or obtain if requested by the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) Selling Shareholder whose Registrable Securities are being 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, if any, and the Holders may reasonably request to holder of Registrable Securities being offered for sale consider should be included therein in order relating to permit the intended method plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered for sale, the purchase price being paid therefor and with respect to any other terms of the offering of the Registrable SecuritiesSecurities 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;
(viiiv) if requested by any Selling Shareholder, furnish to each selling Holder and each underwriter, if anySelling Shareholder, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy of the applicable Registration Statement and Statement, any amendment or (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);
(ixvi) deliver to each selling Holder Selling Shareholder and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter persons may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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 underwriterrequest;
(xvii) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and qualify or cooperate with each selling Holderthe Selling Shareholders, the managing underwriter or underwriters, if any, and their respective counsel, counsel in connection with the registration or qualification of such the Registrable Securities for offer and sale under the state securities or “blue sky” sky laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel seller reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxiviii) take all other customary steps otherwise reasonably necessary cooperate with the Selling Shareholders to effect carry out the Registration, offering and sale intent of the Registrable Securitiesthis Agreement.
(bc) As a condition precedent to any Registration hereunder, the The Company may require each Holder as to which any Registration is being effected Selling Shareholders 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 such Holder agrees to furnish ; provided, however, that such information shall be used by the Company only to the Company extent necessary for and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreementin connection with, such registration.
(cd) Each Holder agrees, Selling Shareholder agrees that, upon receipt of any written notice from the Company of the occurrence imposition of any event order suspending the effectiveness of the kind described in Section 2.04(a)(v), a Registration Statement such Holder will Selling Shareholder shall forthwith discontinue disposition of such Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder 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 holder shall deliver to the Company (at the Company’s expense) all copies, other ththan 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 the Registration Statement in Section 3 shall be extended by the number of days during the period from and including the date of the stop order to and including the date of the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Igate Corp), Registration Rights Agreement (Igate Corp)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale Company is required to effect the registration of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use its reasonable best efforts to effect or cause and facilitate the Registration registration, offering and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andas promptly as is practicable, and the Company shall as expeditiously as possible:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the 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 Prospectuswith respect to such Registrable Securities, make all required filings required (including Financial Industry Regulatory Authority filings) in connection therewith and thereafter and (if the 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 any amendments or supplements theretothereto (including free writing prospectuses under Rule 433), (A) the Company will furnish to the underwriters, if any, and to the Holders participating in for such Registration, registration copies of all such documents prepared proposed to be filedfiled (including exhibits thereto), which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider such other documents reasonably requested by such counsel, including any comment letter from the SEC, and give the Holders participating in good faith any comments 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 is reasonably unable to comply with, then the Company may defer the filing of the underwriters and Holders and their respective counsel on Registration Statement that is required to effect the applicable registration for a reasonable period of time to compile such documentsinformation;
(ii) prepare and file with the SEC such amendments and supplements to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep 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 accordance the case 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 terms maximum period of this Agreement time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period ending when all of the Registrable Securities covered by such Registration Statement have been disposed of (but in any event not before the expiration of any longer period required under the Securities Act) and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all 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 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 Registrable Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of covered by such Registration Statement;
(iviii) notify the participating Holders furnish to each Selling Holder and the managing underwriter or underwritersunderwriters such number of copies, if anywithout charge, of any Registration Statement, each amendment and (if requested) confirm supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such advice other documents as such persons may reasonably request from time to time in writing and provide copies order to facilitate the disposition of the relevant documentsRegistrable Securities owned by such Selling Holder; provided that, as soon as reasonably practicable after notice thereof is received by before amending or supplementing any Registration Statement, the Company (A) when shall furnish to the applicable Registration Statement Holders a copy of each such proposed amendment or supplement and not file any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any such proposed amendment or supplement to such Prospectus has been filed, (B) of which any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Selling Holder reasonably objects. The Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company hereby consents to the use of such Prospectus or any prospectus and each amendment or supplement thereto by each selling Holder 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 Prospectus or prospectus and any such 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;
(xiv) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualifyqualify any Registrable Securities under such other securities or blue sky laws of such jurisdictions as any Selling Holder, and cooperate with each selling Holder, the managing underwriter or underwriters, if anyany reasonably request, and their respective counsel, in connection with the use its reasonable best efforts to keep each such registration or qualification of (or exemption therefrom) effective during the period such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing Registration Statement is required to be kept effective and do any and all other acts or and things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of sales and dealings in such jurisdictions of the United States for so long as that may be necessary or reasonably advisable to complete enable such Selling Holder and each underwriter, if any, to consummate the distribution disposition of the seller’s Registrable Securities covered by the Registration Statementin such jurisdictions; 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 (iii) consent 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;
subject (xi) other than service of process in connection with such registration or qualification or any sale of Registrable Securities that will in connection therewith);
(v) 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 securities no longer being 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 each selling Holder the Holders and the any managing underwriter or underwriters, if any, underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold sold, and not bearing any restrictive Securities Act legends; and to register enable certificates for such Registrable Securities to be issued for such number of shares and registered in such denominations and such names as such selling Holder or the Holders and any managing underwriter(s), if any, ) may request at least two Business Days prior to such sale of Registrable Securities; 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 Systemreasonably request;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviiiviii) cause all such Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of similar securities issued by the Company’s Common Stock Company are then listed or quoted and on each inter-dealer quotation system on which any of or, if no similar securities issued by the Company’s Common Stock Company are then quotedlisted on any securities exchange, including the filing of any required supplemental listing application;
(xix) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed use its reasonable best efforts to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the cause all such Registrable Securities to be Registeredlisted 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, (Ciii) 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 sale removal of any such stop order, injunction or placement agent therefor, if anyother order or requirement or proceeding or the lifting of any such suspension, (Dv) counsel 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 underwriters or agentpurpose;
(x) make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to the applicable Registration Statement and (E) any attorney, accountant or other agent or representative retained by any such Selling 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, underwriter all pertinent financial and other records, pertinent corporate documents and properties documents relating to the business of the Company that are available to the Companyreasonably requested by such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and cause the Company’s officers, directors, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person Selling Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their and make senior management of the Company available for customary due diligence responsibility, subject to the foregoing, and drafting activity; provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix3(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 person is notified, unless (xA) the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (yB) 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, (FD) such information is or becomes available to such Person person on a non-confidential basis from a source other than the Company or (zE) such information is independently developed by such Personperson. 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 Company, assist the Company in seeking to prevent or limit the proposed disclosure;
(xxxi) in the case of an underwritten offering, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters or any Selling Holder reasonably requests to cause be included therein, the executive officers 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 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) and take all such other actions as the Selling Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(xiv) in the case of an underwritten offering, make senior management of the Company available to participate assist to the extent reasonably requested by the managing underwriters of any Underwritten Offering to be made pursuant to such registration in the customary marketing of the Registrable Securities to be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations that may and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be reasonably requested by sold in the managing underwriter or underwriters in any Underwritten Offering Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Stock
(xxixv) take use reasonable best efforts to: (a) obtain all other customary steps reasonably necessary consents of independent public accountants required to effect be included in the Registration, Registration Statement and (b) in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the underwriters and to the Selling Holders, dated the date of the underwriting agreement for such offering and the date of each 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 as the underwriters 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), addressed to the underwriters, dated as of the date of such closing, with respect to the Registration Statement, each 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;
(b) As a condition precedent to any Registration hereunder, the obligations of the Company may require to file any registration statement covering Registrable Securities, each Holder of Registrable Securities as to which any Registration 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 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 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 this Agreement.
that (ci) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v3(a)(v), such Holder will shall forthwith discontinue its disposition of Registrable Securities pursuant to the registration statement relating to such Registration Statement Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 2.04(a)(v3(a)(v), or until such Holder is advised in writing by ; (ii) upon receipt of any notice from the Company that the use of the Prospectus may be resumed, and if so directed by happening of any event of the Companykind described in clause (A) of Section 3(a)(ix), such Holder will deliver 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 (at B) of Section 3(a)(xi), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the Companyapplicable state jurisdiction(s) until such ▇▇▇▇▇▇’s expensereceipt 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 copies, other thRegistrable 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. (a) In connection with Whenever the Registration and/or sale of Holder has requested that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall Corporation will use commercially reasonable best efforts to effect or cause complete the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andwithin the time periods set forth in this Agreement, and pursuant thereto the Corporation will as promptly as reasonably practicable:
(i) prepare and file with the required Registration StatementSEC with respect to any Demand Registration, including all exhibits and financial statements required a registration statement on any appropriate form under the Securities Act with respect to be filed therewithsuch Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, and provided that as far in advance as practicable before filing with the SEC a Registration Statement or Prospectus, such registration statement or any amendments or supplements amendment thereto, (A) the Corporation will furnish to the underwriters, if any, and to the Holders participating in such Registration, Holder copies of reasonably complete drafts of all such documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counselfiled (including exhibits), and (B) the Holder shall have the opportunity to discuss any information contained therein with the Corporation and the Corporation will consider in good faith all corrections reasonably requested by the Holder with respect to such information prior to filing any comments of the underwriters and Holders and their respective counsel on such documentsregistration statement or amendment;
(ii) except in the case of a Shelf Registration, prepare and file with the SEC such amendments amendments, post-effective amendments, and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 180 days (or such lesser period as is necessary for the underwriters in accordance with the terms of this Agreement an underwritten offering to sell unsold allotments) and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the Shares Registered thereonsellers thereof set forth in such registration statement;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement continuously effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares Registrable Securities subject thereto for a period ending on the 3rd anniversary after earlier of the effective date on which all the Registrable Securities subject thereto have been sold pursuant to such registration statement and the date of expiration of such Registration StatementShelf Registration;
(iv) notify furnish to the participating Holders Holder and the managing underwriter or underwriters, if any, and (if requested) confirm underwriters of the securities being registered such advice in writing and provide number of copies of the relevant documentssuch registration statement, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any each amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or and supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any timethereto, the representations prospectus included in such registration statement (including each preliminary prospectus), any issuer free writing prospectus, any documents incorporated by reference therein and warranties of such other documents as such seller or underwriters may reasonably request in order to facilitate the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for offering or sale in any jurisdiction owned by such seller or the initiation or threatening sale of any proceeding for such purpose;
securities by such underwriters (v) promptly notify each selling Holder it being understood that, subject to Section 2.5 and the managing underwriter or underwriters, if any, when the Company becomes aware requirements of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act andand applicable state securities laws, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge Corporation consents 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwritersprospectus, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that and any issuer free writing prospectus by the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, underwriters in connection with the offering and sale of the Registrable Securities covered by the registration statement of which such Prospectus or any prospectus, 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 underwriteris a part);
(xv) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” laws of each state and other jurisdiction of such jurisdictions as the United States as any selling Holder or 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 underwriters, if any, qualification (or their respective counsel reasonably request exemption therefrom) effective during the period in writing which such registration statement is required to be kept effective; and do any and all other acts or and things which may be reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as enable the Holder to permit consummate the continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution disposition of the Registrable Securities covered owned by the Registration Statement; provided such seller in such jurisdictions (provided, however, that the Company Corporation will not be required to (A) 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 subparagraph, (B) consent to taxation or general service of process in any such jurisdiction), (C) subject itself to taxation in any such jurisdiction where it is not then so subjector (D) register as a foreign corporation in any such jurisdiction;
(xivi) promptly notify the Holder and each underwriter and (if requested by any such Person) confirm such notice in writing (A) when any such registration statement or any issuer free writing prospectus used in connection therewith, or any related prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to any sale such registration statement or any post-effective amendment, when the same has become effective, (B) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of idle Registrable Securities under state securities or “blue sky” laws or the initiation of any proceedings for that will result purpose, and (C) at any time when a registration statement pursuant to a Demand Registration (other than a Shelf Registration) is effective or during any period covered by a Shelf Notice of the happening of any event which makes any statement made in any such registration statement or related prospectus or issuer free writing prospectus untrue or which requires the making of any changes in such securities no longer being registration statement, prospectus, issuer free writing prospectus or documents 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, 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, cooperate with each selling Holder and such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the managing underwriter or underwritersstatements therein, if anyin the light of the circumstances under which they were made, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemmisleading;
(xiivii) cooperate permit the Holder to participate in the preparation of such registration or comparable statement and assist to consider the insertion therein of material, furnished to the Corporation in any filings required to be made with writing, which in the FINRA and each securities exchange, if any, on which any reasonable judgment of the Company’s securities are then listed or quoted Holder and on each inter-dealer quotation system on which any its counsel should be included;
(viii) use commercially reasonable efforts to make reasonably available members of management of the Company’s securities are then quotedCorporation, and as selected by the Holder, for such assistance in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required selling effort relating 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 registration as may be necessary to enable reasonably requested by the seller or sellers thereof or Holder, including, but not limited to, the underwriter or underwriters, if any, to consummate the disposition participation of such Registrable Securitiesmembers of the Corporation’s management in live or recorded road show presentations;
(xiiiix) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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 otherwise use of The Depository Trust Company’s Direct Registration System;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC SEC, including the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and make generally available to its the Corporation’s security holders, as soon as reasonably practicable, but 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 12-12 month period beginning with the first day of the CompanyCorporation’s first fiscal quarter commencing after the effective date of the applicable Registration Statementa registration statement, an which earnings statement satisfying shall cover said 12 month period, and which requirement will be deemed to be satisfied if the provisions of Section 11(a) of 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 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 StatementAct;
(xviix) provide and cause if reasonably requested by the managing underwriter or the Holder promptly incorporate in a prospectus supplement or post-effective amendment or prepare an issuer free writing prospects including such information as the managing underwriter or any seller reasonably requests to be maintained a transfer agent and registrar for all included therein, including, without limitation, with respect to the Registrable Securities covered being sold by such seller, the purchase price being paid therefor by the applicable Registration Statement from underwriters 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 with respect to be listed on each securities exchange on which any other terms 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, underwritten offering of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for sold in such underwriters or agentoffering, and promptly make all required filings of such prospectus supplement or post-effective amendment or issuer free writing prospectus;
(Exi) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into a registration statement (in the form in which it was incorporated), deliver a copy of each such document to the Holder unless available on the SEC’s Electronic Data Gathering and Retrieval System (▇▇▇▇▇) or any successor system;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Corporation’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates;
(xiii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holderseller or underwriter (collectively, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above“Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the CompanyCorporation, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be reasonably necessary to enable them to exercise their due diligence responsibility, subject and cause the Corporation’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement;
(xiv) furnish to the foregoingHolder and underwriter a signed counterpart of (A) an opinion or opinions of counsel to the Corporation, provided that any and (B) a comfort letter or comfort letters from the Corporation’s independent registered public accountants, each in customary form and covering such Person gaining access 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 information or personnel pursuant be addressed to this Section 2.04(a)(xixboth the seller and underwriter, if reasonably possible);
(xv) shall agree to use commercially reasonable efforts to protect cause the confidentiality 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 the Holder 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;
(xviii) 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;
(xix) notify the Holder promptly of any information regarding request by the Company which SEC for the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (x) the release amending or supplementing of such information is required by law registration statement or regulation prospectus or is requested or required by deposition, interrogatory, requests for information or documents 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 or (z) such information is independently developed by such Personadditional information;
(xx) to cause enter into such agreements (including underwriting agreements in the executive officers 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 obtain knowledge thereof, of the Company to participate in the customary “road show” presentations that may be reasonably requested issuance of any stop order by the managing underwriter SEC suspending the effectiveness of such registration statement or underwriters in the initiation or threatening of any Underwritten Offering proceeding for such purpose and otherwise promptly use commercially reasonable efforts to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoprevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(xxixxii) use commercially reasonable efforts to take all other customary steps reasonably necessary to effect the Registration, offering and sale registration of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing covered by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thregistration 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 filing by the Company of a Demand Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseStatement, the Company 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 reasonable its best efforts to effect register or cause qualify the shares of Class A Common Stock and/or Class B Common Stock covered by a Demand Registration and Statement under the sale securities laws of such Registrable Securities states as Torchmark shall reasonably request; provided, however, that the Company shall not be required in accordance connection with this paragraph (b) to qualify as a foreign corporation or execute a general consent to 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 intended methods requirements of disposition thereof 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 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) prepare Offering Expenses in connection with a Demand Registration Statement shall be paid by Torchmark; provided, that in the event any shares of 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 file the required denominator of which is the total number of shares included in the Demand Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;; and
(ii) prepare Offering Expenses in connection with a Company Registration Statement (as defined below) shall be paid by the Company; provided, that 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 the 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 file with included in the SEC such amendments and supplements to such Company Registration Statement and the Prospectus used denominator of which is the total number of shares included in connection therewith as may be necessary the Company Registration Statement.
(f) Prior to keep such Registration Statement effective in accordance with March 31, 2002, each time the terms Company proposes to register any of this Agreement and to comply with the provisions of the Securities Act 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 disposition 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 all its intention to do so and of Torchmark's rights under this Section 5.3(f). Torchmark may request within thirty (30) days after receipt of any such notice to include in the Company Registration Statement some or any portion of the Shares Registered thereon;
(iii) in the case shares 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter Class A Common Stock or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received Class B Common Stock then held by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC Torchmark or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) member of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Torchmark Group. The Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 reduced (pro rata among Torchmark and any other stockholder with similar registration rights based on the number of shares so requested to enable the seller or sellers thereof or the underwriter or underwriters, be registered) if any, to consummate the disposition of such Registrable Securities;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters shall be of the opinion that such inclusion would adversely affect the marketing of the securities to be sold. Torchmark's exercise of its right under this Section 5.3(f) to include shares in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may shall not be resumed, and if so directed by the Company, such Holder will deliver counted against Torchmark's right to the Company (at the Company’s expense) all copies, other threquest 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. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required by ----------------------- the provisions of this Warrant to use reasonable its best efforts to effect or cause the Registration and registration of any of the sale of such Registrable Shares under the Securities in accordance with Act, the intended methods of disposition thereof andCompany shall:
(ia) prepare and file furnish to the required Registration StatementRegistered Holder such number of copies as the Registered Holder shall reasonably request of the prospectus, including all exhibits a preliminary prospectus and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to in conformity with the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments requirements of the underwriters and Holders and their respective counsel on such documentsSecurities Act;
(iib) prepare and file with use its best efforts to register or qualify the SEC such amendments and supplements to such Registrable Shares covered by the Registration Statement and under the Prospectus used securities laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company -------- ------- shall not be required in connection therewith with this subsection 20(b) to qualify as may be necessary a foreign corporation or execute a general consent to keep such Registration Statement effective service of process in accordance with any jurisdiction;
(c) promptly notify the terms of this Agreement 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 provisions requirements of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafterif requested by the Company, prepare the Registered Holder shall immediately cease making offers or sales of Registrable Shares under the Registration Statement and file with the SEC, and furnish without charge return all prospectuses to the selling Company. The Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of the revised prospectuses, the Registered Holder shall be free to resume making offers and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution sales of the Registrable SecuritiesShares; 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;and
(viiid) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of pay the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein expenses incurred by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in complying with its obligations under this Warrant in connection with the offering registration rights, including all registration and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectivefiling fees, use its reasonable best efforts to register or qualifyexchange listing fees, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates expenses for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 preparation of the Registration Statement;
(xvii) provide statement, prospectus and cause to be maintained a transfer agent any amendments and registrar for all Registrable Securities covered by the applicable Registration Statement from supplements thereto, printing and after a date not later than the effective date photocopy expenses, fees and expenses 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 fees and expenses of accountants for the Company’s officers, employees and but excluding: (i) selling commissions or underwriting discounts incurred by 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 Person Registered Holder in connection with such sales of Registrable Shares under the Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to and (ii) the foregoing, provided that any such 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 fees and expenses 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested counsel retained by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable SecuritiesRegistered Holder.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Common Stock Purchase Warrant (Igi Inc), Common Stock Purchase Warrant (Igi Inc)
Registration Procedures. (ai) In connection with Whenever the Company shall file a Registration and/or sale of Registrable Securities Statement pursuant to this Agreement, through an Underwritten Offering or otherwisehereto, the Company shall use reasonable best efforts to effect or cause the Registration and the sale (A) thereafter, for such period of such Registrable Securities time as shall be required in accordance connection with the intended methods of disposition thereof and:
(i) prepare transactions contemplated thereby and permitted by applicable rules, regulations and administrative practice, file all post-effective amendments and supplements thereto or to the required Registration Statement, including prospectus contained therein and all exhibits and financial statements required filings under the Securities Exchange Act to be filed therewith, and before filing with of 1934 that are necessary or appropriate so that neither the SEC a Registration Statement nor any related prospectus shall contain any material misstatement or Prospectus, omission relative to the Company or any amendments of its assets or supplements theretoits business or affairs and so that the Registration Statement and such prospectus will otherwise comply with all applicable legal requirements, subject to the provisions of Paragraph 2(b) (iii) above, (AB) furnish to the underwriters, if any, and to Selling Holders of the Holders participating in registered Registrable Securities such Registration, number of copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registrationany related preliminary prospectus, 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwritersprospectus, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment or supplement as such information as the managing underwriters, if anySelling Holders reasonably may request, and (C) take all action that may be necessary under the Holders securities or Blue Sky laws of any state and as reasonably may reasonably request to be included therein in order requested to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the public offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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 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 taxation or 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;
(xi) in . In connection with any sale such Registration Statement, the Company shall deliver to such Selling Holders and any underwriters such indemnities, contribution agreements, 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 such indemnities, contribution agreements and opinions as are then customarily given to issuers of registered public offerings.
(ii) Anything in this Agreement to the contrary notwithstanding, the Company shall not be obligated to file a Registration Statement unless the Selling Holders of the Registrable Securities that will result being registered shall have furnished the Company in writing all information with respect to such securities no longer being Selling Holders, the Registrable SecuritiesSecurities held by such Selling Holders requested to be so included, cooperate with the transaction or transactions which such Selling Holders contemplate and each selling Holder and the managing underwriter or underwritersunderwriter, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities who will act for such Selling Holders in connection therewith, that any law, rule or regulation requires to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;disclosed therein.
(xiiiii) cooperate and assist in any filings The Company covenants that it will file the reports 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 filed 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 it under the underwriting agreement;
(xv) in the case Securities Exchange Act of an Underwritten Offering, obtain for delivery to and 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 holders1934, as soon as reasonably practicablein effect from time to time, 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 adopted by the Securities and covering 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 period of at least 12 months, Company will enter into an indenture on substantially similar terms and conditions (but not more than 18 months, beginning materially inconsistent with the first month after terms of such Subordinated Debentures) as those contained in the effective date Indenture dated as of November 1, 1986 between the Registration Statement;Company and 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.
(xviiv) provide and cause The Company will, at it own expense, take whatever action is necessary 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 registered pursuant to these registration rights to be listed on each a national securities exchange on which 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 than fees (including underwriters' discounts and commissions) and expenses of any of underwriters and counsel to the Selling Holders) in connection with registrations undertaken pursuant hereto shall be borne by the Company’s Common Stock are , provided, however, that if Masco withdraws or abandons its request, then listed or quoted and on each inter-dealer quotation system on which any of Masco shall reimburse the Company’s Common Stock are then quoted, including Company for all expenses reasonably incurred by the filing of any required supplemental listing application;Company in complying with such request.
(xixvii) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, Masco shall include a Person be deemed to be an underwriter within the meaning representative of Section 2(11) of all Selling Holders, with full authority to select a managing underwriter, withdraw or abandon the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agentRegistration Statement, and make comparable decisions on behalf of all Selling Holders after reasonable consultation therewith.
(Eviii) The Company will make available for inspection any Selling Holder, any underwriter participating in any disposition pursuant to a Registration Statement and any attorney, accountant or other agent or representative professional retained by such any Selling Holder or any such underwriter, as selected by such Holderunderwriter (collectively, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above"Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to (collectively, the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, subject and cause the Company's officers, directors and employees to the foregoing, provided that supply all information reasonably requested by any Inspectors in connection with such 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 registration statement. Records which the Company determines determines, in good faith faith, to be confidential, confidential and of which determination such Person is notified, it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (xi) 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 information Records is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by ordered pursuant to 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 other order from a source other than court of competent jurisdiction. Information obtained as a result of such inspections shall be deemed confidential and shall not be used as the Company or (z) such information is independently developed by such Person;
(xx) to cause basis for any market transactions in the executive officers securities of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering unless and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration until such is being effected to furnish made generally available to the Company such information regarding the distribution public. Each Selling Holder 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 will, upon learning that disclosure of such Records is sought in writing. Each such Holder agrees to furnish such information a court of competent jurisdiction, give notice to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by allow the Company, such Holder will deliver at its expense, to undertake appropriate action to prevent disclosure of the Company (at the Company’s expense) all copies, other thRecords deemed confidential.
Appears in 2 contracts
Sources: Registration Agreement (Mascotech Inc), Registration Agreement (Masco Corp /De/)
Registration Procedures. (a) In connection with the Demand Registration and/or sale obligations of the Company pursuant to and in accordance with Section 5.1 of this Agreement and subject to receipt from the sellers of Registrable Securities pursuant of the information to this Agreementbe furnished by them, through an Underwritten Offering or otherwiseas provided below, the Company shall use its reasonable best efforts to effect or cause the Registration and such registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Company shall:
(ia) prepare and file with the required SEC, as soon as practicable within the time periods specified in Section 5.1, a Registration Statement, including all exhibits and financial statements required Statement or Registration Statements relating to the Demand Registrations on any appropriate Form under the Securities Act to which shall be filed therewithavailable for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof, and use its reasonable best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) including documents incorporated or deemed to be incorporated by reference, the Company shall furnish to the holders of the Registrable Securities covered by such Registration Statement, their Special Counsel and the managing underwriter or underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters holders, their Special Counsel and such participating Holders and their respective counselunderwriters, if any, and the Company shall not, subject to the requirements of applicable law and Section 5.1, file any such Registration Statement, or amendment thereto or any Prospectus or any supplement thereto (Bincluding such documents incorporated by reference) consider to which the holders of a majority in good faith any comments number of the underwriters and Holders and their respective counsel Registrable Securities covered by such Registration Statement, or the managing underwriter or underwriters, if any, shall reasonably object on such documentsa timely basis;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith required to be filed pursuant to Section 5.1 of this Agreement as may be necessary to keep such Registration Statement effective for the time period specified in accordance with Section 5.1; cause the terms of this Agreement 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 such period in accordance with the intended methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement or such Prospectus;
(iiic) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements use its best efforts 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders selling holders of Registrable Securities, their Special Counsel and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice notice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A1) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment related to such Registrable Securities has been filed, and, with respect to a Registration Statement or any post-effective amendment thereto related to such Registrable Securities, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, (C3) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D4) if, if at any time, time the representations and warranties of the Company contained in any applicable agreement (including any underwriting agreement agreement) entered into pursuant to Section 6(o) below cease to be true and correct in all material respectscorrect, and (E5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
, (v6) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as which makes any statement made in such a result of which the applicable Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which requires the Prospectus included making of any changes in such Registration Statement (as then in effect) contains or Prospectus so that such Prospectus will not contain any untrue statement of a material fact or omits omit to state a any material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made) , not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge (7) prior 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 complianceinitiation of a Suspension Period;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of such a Registration Statement, or the lifting of any preliminary suspension of the qualification (or final Prospectusexemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(viie) if requested by the managing underwriter or underwriters or 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, if any, underwriters and the Holders may reasonably request to such holder agree should be included therein in order to permit the intended method of distribution of the Registrable Securities; and as required by applicable law, (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified 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;
(viiig) furnish to each selling Holder holder of Registrable Securities, its Special Counsel and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy of the applicable Registration Statement or Statements related to such Registrable Securities and any amendment or 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);
(ixh) deliver to each all selling Holder holders of Registrable Securities, their Special Counsel and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus or Prospectuses related to such Registrable Securities (including each preliminary Prospectusprospectus) and as many copies of any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; subject to the restrictions contained in the last paragraph of Section 5.3, the Company consents to the use of such Prospectus or any amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(xi) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, 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” Blue Sky laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder seller or managing underwriter reasonably requests in writing; use its best efforts to keep each such registration or underwriters, if any, or their respective counsel reasonably request in writing 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 keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or 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;
(xij) in connection cooperate with any sale the selling holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xiik) 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiil) not later than as expeditiously as possible after the occurrence of any event contemplated by paragraph 5.3(c)(6) above, but subject to Section 5.1(a), prepare a post-effective date 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 so that, as thereafter delivered to the purchasers of the applicable Registration StatementRegistrable Securities being sold thereunder, provide such Prospectus will not contain any untrue statement of a CUSIP number for material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(m) use its reasonable best efforts to cause all Registrable Securities covered by such a Registration Statement to be listed on each securities 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;
(n) enter into such agreements (including an underwriting agreement) consistent with this Section 5.3 and provide use its reasonable best efforts to take all such other actions in connection therewith as shall have been reasonably requested by the applicable transfer agent with printed certificates for managing underwriter or underwriter, if any, or the holders of a majority in principal amount of the Registrable Securities which being sold in order to expedite or facilitate the disposition of such Registrable Securities including, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (1) 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 a form eligible underwritten offerings and confirming the same if and when reasonably requested; (2) using its reasonable best efforts to obtain for deposit with The Depository Trust Company; provided that the benefit of the holders of such Registrable Securities opinions of counsel to the Company may satisfy its obligations hereunder without issuing physical stock certificates through and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the use managing underwriters, if any, and the holders of The Depository Trust Company’s Direct Registration System;
(xiva majority in principal amount of the reasonably Registrable Securities being sold) in the case of an Underwritten Offering, obtain for delivery to and addressed to the each selling Holders holder and the underwriter or underwriters, an opinion 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 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 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 of the Company addressed to any acquired company financial statements) each selling holder of Registrable Securities and the underwriters, if any, such letters to be in customary form and content for covering matters of the type of Underwritten Offering, including with comfort customarily covered in “cold comfort” letters customarily delivered in connection with quarterly period financial statements underwritten offerings; (4) if applicablean underwriting agreement is entered into, dated the date same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 5.5 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) delivering such documents and certificates to certify that the representations and warranties of execution of the Company made pursuant to clause (1) above continue to be true and correct 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 brought down to the closing under the underwriting agreementextent required thereunder;
(xvio) make available for inspection by a representative of the holders of Registrable Securities being sold, any underwriter participating in any disposition of Registrable Securities and any attorney or accountant retained by such selling holders or underwriter, all financial and other records, pertinent corporate documents and properties of the Company as shall be reasonably necessary to enable them to exercise their due diligence responsibility and cause the 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 Registration Statement; provided, however, that any records, information or documents that are designated by the Company 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 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, 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the . The Company may require each Holder seller of Registrable Securities as to which any Registration registration is being effected to furnish to the Company such information regarding such seller and 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 , and the Company may exclude from such Holder agrees registration the Registrable Securities of any seller who fails to furnish such information to information, provided, that such sellers’ Registrable Securities shall be counted for the demand made upon the Company and to cooperate with the Company as reasonably necessary to enable the Company hereunder. Each holder of Registrable Securities agrees to comply with the provisions of this Agreement.
(c) 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 agrees, holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v5.3(c)(3), 5.3(c)(5), 5.3(c)(6) and 5.3(c)(7) hereof, such Holder will holder shall forthwith discontinue disposition of such Registrable Securities pursuant to covered by such Registration Statement or Prospectus until such Holderholder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v)5.3(1) hereof, or until such Holder it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and if so directed has received copies of any additional or supplemental filings which are incorporated by reference in such Prospectus. In the Company, such Holder will deliver to event the Company (at shall give any such notice, the Company’s expense) all copies, other thsix months time period mentio
Appears in 2 contracts
Sources: Shareholders' Agreement (Matthews International Corp), Shareholders' Agreement (Schawk Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities Company’s registration obligations pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 3 hereof, the Company shall company will use reasonable its best efforts to effect or cause the Registration and such registrations to permit the sale of such the Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the company will as expeditiously as possible:
(ia) prepare and file with the required SEC, as soon as practicable, a Registration StatementStatement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, including 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 exhibits and financial statements required under by the Securities Act SEC to be filed therewith, and use its best efforts to cause such Registration Statement to become effective; provided, however, that before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) 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, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, 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 documents will be subject to the review holders of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments a majority of the underwriters and Holders and their respective counsel on aggregate principal amount of Registrable Securities covered by such documentsregistration Statement or the underwriter or underwriters, if any, shall reasonably object;
(iib) prepare and file with the SEC such pre-effective amendments and supplements post-effective amendments to such the 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 effective in accordance have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed with the terms of this Agreement and SEC pursuant to comply with the provisions of Rule 424 under the Securities Act with respect to the disposition of all of the Shares Registered thereonAct;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A1) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, (C3) of the issuance by the SEC of any stop order suspending the effectiveness of such to the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or for the initiation or threatening of any proceedings for such purposesthat purpose, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E4) 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 and (v5) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which makes any statement made in the applicable Registration Statement or Statement, the Prospectus included or any document incorporated therein by reference untrue or which requires the making of any changes in such the Registration Statement (as then Statement, the Prospectus or any document incorporated therein by reference in effect) contains any untrue statement of a material fact or omits to state a material fact necessary order to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible moment;
(viie) 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, if any, underwriter or underwriters and the Holders may reasonably request to holders of a majority of the aggregate principal amount of Registrable Securities being sold agree should be included therein in order relating to permit the intended method of distribution sale of the Registrable Securities, including, without limitation, information with respect to the principal amount of Registrable Securities being sold to such underwriter or underwriters, the First Purchase Price and Loan Amount being paid therefor by such underwriter or underwriters and 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;
(viiif) furnish to each selling Holder holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one copy 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);
(ixg) deliver to each selling Holder holder of Registrable Securities and to each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter persons may reasonably request (it being understood that request; the Company consents to the use of such the Prospectus or any amendment or supplement thereto by each of the selling Holder holders of Registrable securities and the underwriterseach underwriter, if any, in connection with the offering and sale of the Registrable registrable Securities covered by such the 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;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, 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” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(xii) in connection cooperate with any sale the selling holders 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 sold, which certificates shall not bearing bear any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder the managing underwriter or the underwriter(s), if any, underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriter or underwriters;
(xiij) 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 or such Registrable Securities;
(xiiik) upon the occurrence of any event contemplated by paragraph (5)(c)(5) above, prepare a supplement or 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 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 ;
(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 provide in such connection, whether or not an underwriting agreement is entered into and whether or not the applicable transfer agent with printed certificates for registration is a best efforts underwritten offering to (1) obtain opinions of counsel to the Company (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 which are 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;
(xivbeing sold) in the case of an Underwritten Offering, obtain for delivery to and addressed to the each selling Holders holder and the underwriter or underwriters, an opinion from if any, covering the Company’s outside counsel matters customarily covered in customary form opinions requested in underwritten offerings and content for the type of Underwritten Offering, dated the date of the closing under the underwriting agreement;
such other matters as may be reasonably requested by such holders and underwriters; and (xv2) in the case of an Underwritten Offering, obtain for delivery to “cold comfort” letters and 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 updates thereof from the Company’s independent certified public accountants (addressed to the selling holders of Registrable Securities and the independent certified public accountants with respect underwriter or underwriters, if any, such letters to any acquired company financial statements) be in customary form and content for covering matters of the type of Underwritten Offering, including with comfort customarily covered in “cold comfort” letters customarily delivered received by underwriters in connection with quarterly period financial statements if applicable, dated the date of execution primary underwritten offerings.
(o) make available for inspection by representative of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts to comply with all applicable rules and regulations holders of a majority of the SEC and make generally available aggregate principal amount of Registrable Securities, any underwriter participating in any disposition pursuant 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 any such 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 any attorney or accountant retained 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 sellers 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwriters, if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 Companycompany’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person representative, underwriter, attorney or accountant in connection with any such Registration Statement Statement; provided, however, that any non-public records, information or documents that are designated by the Company in writing as confidential shall be necessary to enable them to exercise their due diligence responsibilitykept confidential by such persons unless disclosure of such records, subject to the foregoing, provided that any such 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 documents is required by law court or regulation or is requested or required by deposition, interrogatory, requests for information or documents 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 or (z) such information is independently developed by such Personadministrative order;
(xxp) make generally available to cause its security holders earnings statements satisfying the executive officers provisions of Section 11(a) of the Company 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 participate in the customary “road show” presentations that may be reasonably requested by the managing an underwriter or underwriters in any Underwritten Offering and otherwise a firm or best efforts underwritten offering, or (2) if not sold to facilitatean underwriter or underwriters in such an offering, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect beginning with the Registration, offering and sale first month of the Registrable Securities.
(b) As a condition precedent to any company’s first fiscal quarter commencing after the effective date of the Registration hereunderStatement, the which statements shall cover said 12-month periods. The Company may require each Holder seller of Registrable Securities as to which any Registration registration is being effected affected 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 of Registrable Securities agrees by acquisition of 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 this Agreement.
(c) Each Holder agrees, Registrable Securities that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v)5(c)(3) or 5(k) hereof, such Holder holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holderholder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v)5(c)(3) or 5(k) hereof, or until such Holder 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 copies, other ththan permanent file copies then in such Registrable Securities 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 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 5(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 contemplated by Section 5(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. If the Companies and the Guarantors file a registration statement pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Shelf Registration or Exchange Registration, as the case may be, the relevant Company shall qualify the relevant Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment of a new trustee under the relevant Indenture, the relevant Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the relevant Indenture.
(c) In connection with the Registration and/or sale of Registrable Securities pursuant Companies’ and the Guarantors’ obligations with respect to this Agreementthe Shelf Registration, through an Underwritten Offering or otherwiseif applicable, the Company shall use reasonable best efforts to effect or cause the Registration Companies and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof andGuarantors shall:
(i) use their commercially reasonable efforts to prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC Commission, within the time period specified in Section 2(a), a Shelf Registration Statement on any form which may be utilized by the Companies and which shall register all of the Registrable Securities for resale by Affiliated Market Makers and holders thereof in accordance with such method or Prospectusmethods of disposition as may be specified by such Affiliated Market Makers and such of the holders as, or any amendments or supplements theretofrom time to time, (A) furnish to the underwriters, if any, may be Electing Holders and to cause such Shelf Registration Statement to become effective within the Holders participating time period specified in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsSection 2(a);
(ii) not less than 30 calendar days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Companies by the deadline for response set forth therein; provided, however, holders of Registrable Securities shall have at least 28 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Companies;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided that the Companies shall not be required (A) to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities until such holder has returned a completed and signed Notice and Questionnaire to the Companies and (B) nothing in this clause (iii) shall require the Companies or the Guarantors to file more than one post-effective amendment to the Shelf Registration Statement in any 45-day period;
(iv) as soon as practicable prepare and file with the SEC Commission such amendments and supplements to such Shelf Registration Statement and the Prospectus used in connection therewith prospectus included therein as may be necessary to keep effect and maintain the effectiveness of such Shelf Registration Statement effective for the period specified in accordance Section 2(a) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders and any Affiliated Market Makers copies of any such supplement or amendment simultaneously with or prior to its being used or filed with the terms of this Agreement and to Commission;
(v) comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) Registrable Securities covered by such Shelf Registration Statement in the case of a Shelf Registration, prepare and file accordance with the SEC intended methods of disposition by the Electing Holders and any Affiliated Market Makers provided for in 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Shelf Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the RegistrationElecting Holders, (B) the Affiliated Market Makers, (C) the underwriters (which term, for purposes of this Exchange and Registration Rights Agreement, shall include a Person person deemed to be an underwriter within the meaning of Section 2(112(a)(11) of the Securities Act), if any, of the Registrable Securities to be Registeredthereof, (CD) the sale any sales or placement agent therefor, if any, (DE) counsel for any such underwriters underwriter or agent, agent and (EF) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, not more than one counsel for all the Electing Holders the opportunity to participate in the preparation of review and comment on such Shelf Registration Statement, each Prospectus prospectus included therein or filed with the SEC, Commission and each amendment or supplement thereto, and to require the insertion therein of material, furnished thereto prior to the Company in writing, which in filing thereof with the reasonable judgment of such Holder(sCommission;
(vii) and their counsel should be included; and for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(a), make available upon reasonable notice at reasonable times and for at the Companies’ principal place of business or such other reasonable periods place for inspection by the parties persons referred to in (ASection 3(c)(vi) through (E) above, all pertinent who shall certify to the Companies that they have a current intention to sell the Registrable Securities pursuant to the Shelf Registration such financial and other records, pertinent corporate documents information and properties books and records of the Company that are available to the CompanyCompanies, and cause the Company’s officers, employees employees, counsel and the independent certified 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 Companies to supply all information available respond to the Company reasonably requested by any such Person in connection with such Registration Statement inquiries, as shall be necessary reasonably necessary, in the judgment of the respective counsel referred to enable them in such Section, to exercise their due diligence responsibilityconduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that each such party shall be required to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Companies as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such registration statement or otherwise), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the foregoing, provided that any requirements of such 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 confidentialorder, and only after such person shall have given the Companies prompt prior written notice of which determination such Person is notifiedrequirement), unless or (xC) the release of such information is required by law to be set forth in such Shelf Registration Statement or regulation the prospectus included therein or is requested or required by deposition, interrogatory, requests for information or documents 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 in an amendment to such Person on Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the Commission and does not contain an untrue statement of a non-confidential basis from material fact or omit to state therein a source other than material fact required to be stated therein or necessary to make the Company or (z) such information is independently developed by such Personstatements therein not misleading in light of the circumstances then existing;
(xxviii) to cause the executive officers promptly notify each of the Company to participate in the customary “road show” presentations that Electing Holders, any Affiliated Market Makers, any sales or placement agent therefor and any underwriter thereof (which notification may be reasonably requested made through any managing underwriter that is a representative of such underwriter for such purpose) and confirm such advice in writing, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any comments by the managing underwriter Commission and by the blue sky or underwriters in securities commissioner or regulator of any Underwritten Offering and otherwise U.S. state with respect thereto, or any request by the Commission for amendments or supplements to facilitateor additional information relating to, cooperate withsuch Shelf Registration Statement or prospectus, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxiC) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to issuance by the Commission of any Registration hereunder, stop order suspending the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution effectiveness of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as Shelf Registration Statement or the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt initiation or threatening of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company proceedings for that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thpurpose,
Appears in 2 contracts
Sources: Exchange and Registration Rights Agreement, Exchange and Registration Rights Agreement (Premdor Finace LLC)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale Company is required to effect the registration of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable its best efforts to effect or cause and facilitate the Registration registration, offering and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof as promptly as is practicable and, pursuant thereto, the Company shall as expeditiously as possible and as applicable:
(ia) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities, make all required filings required in connection therewith and (if the Registration StatementStatement is not automatically effective upon filing) use its reasonable best efforts to cause such Registration Statement to become effective as promptly as practicable;
(b) prepare and file with the SEC such amendments and supplements to 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), including or (ii) necessary to keep such Registration Statement effective until all exhibits of the Registrable Securities covered by such Registration Statement have been disposed of and financial statements required under comply with the applicable requirements of the Securities Act with respect to be filed therewith, and the disposition of the Registrable Securities covered by such Registration Statement;
(c) before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements theretothereto and in connection therewith, (A) furnish to the managing underwriter or underwriters, if any, and to the Holders each S▇▇▇▇ Family Stockholder participating in the registration, without charge, such Registration, 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 prepared incorporated by reference therein) and such other documents as such Stockholder may reasonably request, including in order to be filedfacilitate 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 participating Holders Stockholders and their respective counsel, and (B) consider in good faith not file any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and or Prospectus or amendments or supplements thereto to which the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with S▇▇▇▇ Family Stockholders covered by the terms of this Agreement and to comply with same or the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing 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);
(if requestede) confirm use its reasonable best efforts to cause all Registrable Securities covered by any Registration Statement to be registered with or approved by such advice other Governmental Entities or self-regulatory bodies as may be necessary or reasonably advisable in writing and provide copies light of the relevant documents, as soon as reasonably practicable after notice thereof is received by 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 disposition thereof; 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(e);
(Af) promptly notify each S▇▇▇▇ Family Stockholder participating in the registration and the managing underwriters of any underwritten offering:
(i) each time when the applicable Registration Statement, any pre-effective amendment thereto, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment thereto has been filed or becomes effectivethereto, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(Bii) of any oral or written comments by the SEC or of any request by the SEC or any other Governmental Authority federal or state governmental authority for amendments or supplements to such the Registration Statement or such the Prospectus or for any additional information, information regarding such Stockholder;
(Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for any such purposes, purpose; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for offering sale under the applicable securities or sale in any jurisdiction or the initiation or threatening blue sky Laws of any proceeding for such purposejurisdiction;
(vg) promptly notify each selling Holder and S▇▇▇▇ Family Stockholder participating in such registration, at any time when a Prospectus relating thereto is required to be delivered under the managing underwriter or underwritersSecurities Act, if any, when the Company becomes upon becoming aware 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 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 Stockholder a result 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 light of the circumstances under which they were made;
(h) in the applicable 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 then in effect) contains 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 omits 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 (in the case of such Prospectus and any preliminary Prospectus, not misleading in light of the circumstances under which they were made;
(j) not misleading cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed or, if for the Common Stock is not then listed on 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 andsecurities exchange, 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;
(vi) use its reasonable best efforts to prevent or obtain cause such Registrable Securities to be listed on a national securities exchange selected by the withdrawal of any stop order or other order suspending Company after consultation with the use of any preliminary or final ProspectusStockholders participating in such registration;
(viik) 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 Statement;
(l) make available for inspection by any S▇▇▇▇ Family Stockholder participating in the registration, upon reasonable notice at reasonable times and for reasonable periods, any underwriter participating in any underwritten offering pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such S▇▇▇▇ Family Stockholder or underwriter, all corporate documents, financial and other records relating to the Company and its business reasonably requested by such S▇▇▇▇ Family Stockholder or underwriter, cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such S▇▇▇▇ Family Stockholder, underwriter, attorney, accountant or agent in connection with such registration or offering and make senior management of the Company and the Company’s independent accountants available for customary due diligence and drafting sessions; provided, that any Person gaining access to information or 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 good faith to be confidential and of which determination such Person is notified, pursuant to customary confidentiality agreements reasonably acceptable to the Company;
(m) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its stockholders, as soon as reasonably practicable, 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) covering the period of at least twelve (12) months beginning with the first day of the Company’s first full fiscal quarter after the effective date of the applicable Registration Statement, which requirement shall be deemed 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;
(n) in the case of an underwritten offering of Registrable Securities, promptly incorporate in a supplement to the Prospectus supplement or a post-effective amendment to the Registration Statement such information as is reasonably requested by the managing underwriters, if any, and the Holders may reasonably request underwriter(s) or any S▇▇▇▇ Family Stockholder participating in such underwritten offering to be included therein in order therein, the purchase price for the securities to permit be paid by the intended method underwriters and any other applicable terms of distribution of such underwritten offering (and the Registrable Securities; S▇▇▇▇ Family Stockholders shall promptly supply any such information within their possession), and promptly 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;
(viiio) 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 selling Holder and each underwriter, if any, without chargeparticipating 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 many conformed copies as such Holder or underwriter may reasonably request 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 Registration Statement underwriting agreement and any amendment or post-effective amendment theretoat the closing of the offering, including financial statements dated the respective dates of delivery thereof, a “comfort letter” signed by the Company’s independent 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;
(ixq) deliver to each selling Holder and each underwriterin the case of an underwritten offering of Registrable Securities, if any, without charge, as many copies make senior management of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents available, to the use of such Prospectus or any amendment or supplement thereto extent requested by each selling Holder and the underwritersmanaging underwriter(s), if any, to assist in connection with the offering and sale marketing of the Registrable Securities covered by to be sold in such Prospectus or any amendment or supplement thereto) underwritten offering, including the participation of such members of senior management of the Company in “road show” presentations and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition customary marketing activities, including “one- on-one” meetings with prospective purchasers of the Registrable Securities by to be sold in such Holder or underwriterunderwritten 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;
(xr) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, S▇▇▇▇ Family Stockholders to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold and not bearing pursuant to such Registration Statement free of any restrictive Securities Act legends; legends and to register representing such Registrable Securities number of shares of Common Stock and registered in such denominations and such names as such selling Holder or the underwriter(s), if any, S▇▇▇▇ Family Stockholders may reasonably request at least two Business Days a reasonable period of time prior to such sale sales of Registrable SecuritiesSecurities pursuant to such Registration Statement; provided 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;
(xii) 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;
(xiiis) not later than the effective date of the applicable 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 which are in a form eligible for deposit with The Depository Trust Company; provided 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;
(xivt) in upon the case request of an Underwritten Offeringany S▇▇▇▇ Family Stockholder, obtain for delivery promptly amend any Shelf Registration Statement or take such other action as may be necessary to and addressed to the selling Holders and the underwriter de-register, remove or underwriters, an opinion withdraw all or a portion of such S▇▇▇▇ Family Stockholder’s shares of Common Stock 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 Shelf 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained as requested by such 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoStockholder; and
(xxiu) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the otherwise use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thit
Appears in 2 contracts
Sources: Stockholders' Agreement (First Interstate Bancsystem Inc), Stockholders Agreement (First Interstate Bancsystem Inc)
Registration Procedures. (a) In connection with the Registration and/or sale obligations of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts CBC to effect or cause the Registration registration of any Registrable Securities pursuant to the terms and conditions of this Agreement, CBC shall use reasonable efforts to effect the registration and sale of such Registrable Securities in accordance with the intended methods method of disposition thereof anddistribution thereof, and in connection therewith:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) CBC shall prepare and file with the SEC such amendments Commission a Registration Statement on Form S-3 or other similar form under the Securities Act which permits secondary sales of securities in a "shelf registration," and supplements use reasonable efforts to cause such Registration Statement to become effective and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement remain effective in accordance with the terms provisions of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereonAgreement;
(iiib) in the case of a Shelf Registration, CBC shall promptly prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith 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 terms hereof; shall 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 shall comply with the provisions of the Securities Act applicable to it with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of Registrable Securities covered by such Registration StatementStatement during the applicable period in accordance with the intended methods of disposition by Holder set forth in such Registration Statement or supplement to the Prospectus;
(ivc) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm CBC shall promptly furnish to Holder such advice in writing and provide number of copies of the relevant documentsProspectus (including each preliminary Prospectus) and any amendments or supplements thereto, as soon as Holder may reasonably practicable after notice thereof is received request in order to facilitate the public sale or other disposition of the Registrable Securities being sold by the Company Holder;
(Ad) CBC shall promptly notify Holder, (i) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC Commission or any other Governmental Authority state securities authority for amendments or and supplements to such a Registration Statement or such and Prospectus or for additional informationinformation after the Registration Statement has become effective, (Ciii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of a Registration Statement, (iv) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws, and (v) of the happening of any event which makes any statement made in a Registration Statement or related Prospectus untrue or which requires the making of any changes in such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains so that they will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made) , not misleading ormisleading. As soon as practicable following expiration of the Suspension Period (as defined below), if for any other reason it CBC 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, Commission and furnish without charge a supplement or amendment to such Prospectus so that, as thereafter deliverable 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 purchasers of such Registrable Securities;
(xiii) , such Prospectus will not later than contain any untrue statement of a material fact or omit to state a material fact necessary to make the effective date statements therein, in light of the applicable Registration Statementcircumstances under which they were made, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writingmisleading. Each 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 this Agreement.
(c) Each Holder agrees, that, upon Upon receipt of any written notice (a "Suspension Notice") by Holder from the Company CBC of the occurrence happening of any event of the kind described in Section 2.04(a)(v3.3(d), such Holder will shall forthwith discontinue disposition of the Registrable Securities pursuant to such the Resale Registration Statement covering such Registrable Securities until such Holder’s Seller's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), 3.3(d) or until such 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 ththan permanent file copies then in Seller's or broker-dealer's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice; PROVIDED, HOWEVER, that in no event shall the period from the date on which Seller receives a Suspension Notice to the date on which Seller receives either the Advice or copies of the supplemented or amended Prospectus contemplated by Section 3.3(d) (the "Suspension Period") exceed 60 days.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Childrens Broadcasting Corp), Asset Purchase Agreement (Childrens Broadcasting Corp)
Registration Procedures. (a) In connection with Whenever the Registration and/or sale Selling Stockholder shall have made a Notice of Registrable Securities pursuant to this Agreement, through an Underwritten Offering Demand or otherwiserequested a Piggyback Registration, the Company shall use all reasonable best and diligent efforts to effect or cause the Registration registration and the sale of such Registrable Securities Shares in accordance with the intended method or methods of disposition thereof and, pursuant thereto, the Company shall as expeditiously as possible:
(ia) and in any event within 30 calendar days of receipt of a Notice of Demand, prepare and file with the required Commission a Registration Statement, including all exhibits Statement with respect to such Registrable Shares and financial statements required under the Securities Act use its reasonable best efforts to be filed therewith, and cause such Registration Statement to become effective; provided that before filing with the SEC a Registration Statement or Prospectus, or filing any amendments amendment thereof or supplements supplement thereto, (A) the Company shall furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject filed to counsel for the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsSelling Stockholder;
(iib) prepare and file with the SEC Commission such pre- and post-effective amendments of and supplements to such Registration Statement and the Prospectus Prospectus(es) used in connection therewith as may be (i) reasonably requested by the Selling Stockholder or (ii) necessary to keep such Registration Statement effective in accordance with for the terms of this Agreement Registration Period, and to comply with the provisions of the applicable Securities Act Laws with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement;
(c) furnish to the Selling Stockholder or counsel for the Selling Stockholder such number of copies of such Registration Statement, the Prospectus(es) included in such Registration Statement (including each preliminary Prospectus), any other prospectus filed under Rule 424 promulgated under the Securities Act relating to the Selling Stockholder’s Registrable Shares, any Issuer Free Writing Prospectuses, and each amendment of and supplement to any of the preceding, in conformity with the requirements of the Securities Act, and such other documents as the Selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares under such Registration Statement;
(d) use its reasonable and diligent efforts to register or qualify such Registrable Shares under the securities or blue sky laws of such jurisdictions as the Selling Stockholder reasonably requests and keep such registration or qualification in effect for so long as any Registration Statement remains in effect, and do any and all other acts and things which may be reasonably necessary or advisable to enable the Selling Stockholder to consummate the disposition in such jurisdictions of the Registrable Shares; 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 subparagraph; (ii) subject itself to taxation in any such jurisdiction; or (iii) consent to general service of process in any such jurisdiction;
(e) 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 information contained in the case Registration Statement (including any document incorporated by reference therein that has not been superseded or modified), of the happening of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a Shelf Registrationmaterial 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 and file furnish to the Selling Stockholder a reasonable number of copies of an amendment of or supplement to such Prospectus or an Issuer Free Writing Prospectus so that, as thereafter delivered to the purchasers of Registrable Shares, such Prospectus shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, 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 SEC provisions of this Article IV, the Selling Stockholder shall be deemed to have agreed that the Selling Stockholder shall forthwith discontinue such amendments and supplements 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 used in connection therewith as may relating to such Registrable Shares current at the time of receipt of such notice;
(f) cause all such Registrable Shares to be necessary listed, on or prior to keep the effective date of such Registration Statement effective Statement, on each securities exchange or national market on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and to comply with registrar for all the provisions of the Securities Act with respect to the disposition of all Registrable Shares subject thereto for a period ending on the 3rd anniversary after not later than the effective date of such Registration Statement;
(ivh) notify enter into such customary agreements (including underwriting agreements) and take all such other customary actions as the participating Holders and Selling Stockholder or the managing underwriter or underwriters, if any, and (if requested) confirm such advice their counsel reasonably request in writing and provide copies order to expedite or facilitate the disposition of the relevant documentsRegistrable Shares (including, but not limited to, effecting a stock split or a combination of shares) and, make reasonably available members of management of the Company, as soon as reasonably practicable after notice thereof is received selected by the Selling Stockholder, for assistance in the selling effort relating to the Registrable Shares, including, but not limited to, the participation of such members of the Company’s management in “road shows” scheduled in connection with any such registration;
(i) make available for inspection by the Selling Stockholder, any underwriter participating in any sale or other disposition pursuant to such Registration Statement, and any legal counsel, accountant or other agent retained by the Selling Stockholder or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees, counsel and independent registered public accountants to supply all information reasonably requested by the Selling Stockholder or such seller, underwriter, counsel, accountant or agent in connection with such Registration Statement (including the opportunity to discuss the business of the Company with its officers and the independent registered public accountants who have certified its financial statements) as shall be necessary, in the opinion of their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act; and give the 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;
(Aj) promptly notify the Selling Stockholder and each underwriter, if any:
(i) when the applicable such Registration Statement or any amendment thereto Prospectus or Issuer Free Writing Prospectus used in connection therewith has been filed and, with respect to such Registration Statement or becomes effectiveany post-effective amendment thereof, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(Bii) of any written comments by from the SEC or Commission with respect to any filing referred to in clause (i) and of any written request by the SEC or any other Governmental Authority Commission for amendments of or supplements to such Registration Statement or such Statement, Prospectus or for additional informationIssuer 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, (C) or of the issuance by the SEC of Commission or any other regulatory authority of, any stop order or notice suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, Statement; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiv) 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 Registrable Securities for offering applicable securities or sale in any jurisdiction or the initiation or threatening blue sky laws of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwritersjurisdiction; and, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of clauses (ii), (iii) and (iv), promptly use all reasonable and diligent efforts to, respectively, (A) respond satisfactorily to any such Prospectus comments and to file promptly any preliminary Prospectus, in light necessary amendments or supplements; (B) prevent the issuance of the circumstances under which they were madeany stop order or to obtain its withdrawal if such stop order should be issued; and (C) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending such suspension of qualification; and, in each case, keep the use of any preliminary or final ProspectusSelling Stockholder reasonably informed with respect thereto;
(viik) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if anymake 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 Holders may reasonably request Selling Stockholder to be included therein in order to permit consummate the intended method of distribution disposition of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentShares;
(viiil) upon request, furnish to each selling Holder the Selling Stockholder a signed counterpart, addressed to the Selling Stockholder (and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);) of:
(ixi) deliver to each selling Holder and each underwriter, if any, without charge, as many copies an opinion or opinions of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents counsel to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwritersCompany, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than dated the effective date of the applicable such Registration StatementStatement (and, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) in the case of if such registration includes 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 Offeringunderwritten 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
(xvii) in a “comfort” letter, dated the case effective date of an Underwritten Offering, obtain for delivery to and addressed to the underwriter or underwriters such Registration Statement (and, to the extent agreed by the Company’s independent certified if such registration includes an underwritten 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 with quarterly period financial statements if applicableoffering, dated the date of execution of the underwriting agreement and brought down to 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;
(xvim) otherwise use its all reasonable best and diligent efforts to comply with all applicable rules and regulations of the SEC Securities Laws 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, practicable an earnings earning statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(n) cooperate with the 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 National Association of Securities Dealers, Inc.; and
(o) and in any event prior (and, if practicable, at least 48 hours prior) to the filing of any Registration Statement, the filing of any Prospectus or Issuer Free Writing Prospectus or the filing of any amendment of or supplement to such Registration Statement, 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 promulgated thereunder and covering the period of at least 12 monthsthereunder, but not more than 18 monthsunless, 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 the Registrationcase of an amendment or supplement, (B) in the underwriters (which term, for purposes opinion of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company amendment or supplement is reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 Company from 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 liabilities under any applicable federal or state law or regulation or is requested or required by deposition, interrogatory, requests for information or documents 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreementfiling will not violate applicable laws.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Registration Rights Agreement (American Water Works Company, Inc.), Registration Rights Agreement (American Water Capital Corp.)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required to use its reasonable best efforts to effect or cause the Registration registration of any Registrable Securities under the Securities Act as provided in Section 3 and Section 4 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(ia) prepare Prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or ProspectusRegistration Statements on such form which 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 use its reasonable best efforts to cause such Registration Statement to become effective and to remain effective as provided herein; 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), (A) the Company shall furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed. The Company shall not file any 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) with respect to a Demand Registration to which documents will be subject to the review holders of a majority of the Registrable Securities covered by such underwriters and such participating Holders and Registration Statement, their respective counsel, and (B) consider or the managing underwriters, if any, shall reasonably object, in good faith any comments writing, on a timely basis, unless, in the opinion of the underwriters and Holders and their respective counsel on Company, such documents;filing is necessary to comply with applicable law.
(iib) prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective in accordance during the period provided herein with respect to the terms disposition of this Agreement all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of securities covered by such Registration Statement;, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(ivc) notify the participating Holders Notify each selling holder of Registrable Securities, its counsel and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice notice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority Federal or state governmental authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, (Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (Div) if, if at any time, time the representations and warranties of the Company contained in any applicable agreement (including any underwriting agreement agreement) contemplated by Section 6(o) below cease to be true and correct in all material respectscorrect, and (Ev) 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 offering or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose;
, and (vvi) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which the applicable Registration Statement or the Prospectus included that makes any statement made in such Registration Statement (as then or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in effect) contains any material respect or 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 omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (therein, not misleading, and that in the case of such Prospectus and the Prospectus, it will not contain any preliminary Prospectusuntrue 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.
(d) not misleading orUse its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, if or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in 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 jurisdiction.
(e) If requested by the managing underwriter or underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) underwritten offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders such holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified 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.
(viiif) furnish Furnish to each selling Holder holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, as many at least one conformed copies as such Holder or underwriter may reasonably request copy of the applicable Registration Statement Statement, the Prospectus and any amendment or 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);.
(ixg) deliver Deliver to each selling Holder holder of Registrable Securities, its counsel, and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus or Prospectuses (including each preliminary form of Prospectus) and any each amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that in connection with the Company distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus or any and each amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or and any such 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;.
(xh) on or prior Prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel, 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 each state and other jurisdiction of such jurisdictions within the United States as any selling Holder seller or managing underwriter or underwriters, if any, or their respective counsel reasonably request 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 reasonably action that may be necessary or advisable to keep enable such registration or qualification in effect for so long as holders of Registrable Securities to consummate the disposition of such Registration Statement remains in effect and so as to permit the continuance of sales and dealings Registrable Securities 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 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 taxation or general service of process in any such jurisdiction where it is not then so subject;.
(xii) in connection Cooperate with any sale the selling holders 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 (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register 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 such selling Holder or the underwriter(s)managing underwriters, if any, or holders may request at least two Business Days (2) business days prior to such any sale of Registrable Securities; provided that Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;securities.
(xiij) 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiiik) Upon the occurrence of any event contemplated by Section 6(c)(vi) above, prepare a supplement or 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 file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not later than 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 light of the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the applicable Registration StatementStatement relating to the Registrable Securities, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;Securities.
(xivm) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable such Registration Statement from and after a date not later than the effective date of such Registration Statement;.
(xviiin) Use its reasonable best efforts to cause all shares of Registrable Securities covered by the applicable such Registration Statement to be authorized to be quoted on the Nasdaq National Market or listed on each a national securities exchange on which any if shares of the Company’s Common Stock particular class of Registrable Securities are then at that time quoted on the Nasdaq National Market or listed or quoted on such exchange, as the case may be.
(o) Enter into such agreements (including an underwriting agreement in form, scope and on each inter-dealer quotation system on which any substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of the Company’s Common Stock are then quotedRegistrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, including if any) to expedite or facilitate the filing disposition of any required supplemental listing application;
(xix) provide (A) each Holder participating such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the Registrationregistration is an underwritten registration, (Bi) make such representations and warranties to the underwriters (which term, for purposes holders of this Agreement, shall include a Person deemed to be an underwriter within such Registrable Securities and the meaning of Section 2(11) of the Securities Act)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 underwritten offerings, and, if true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish to the 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 the Registrable 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 counsel and underwriters, (iii) use its reasonable best efforts to obtain "cold comfort" letters and updates thereof 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) who have certified the financial statements included in such Registration Statement, addressed to each selling 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 in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities to be Registeredbeing sold, (C) their counsel and the sale or placement agent thereformanaging underwriters, if any, to evidence the 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, or as and to the extent required thereunder.
(Dp) counsel Make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such underwriters or agentdisposition of Registrable Securities, if any, and (E) any attorney, accountant attorneys or other agent or representative accountants retained by such Holder selling holders or any such underwriter, as selected by such Holderat the offices where normally kept, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the during reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) abovebusiness hours, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Companyand its subsidiaries, and cause the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and its subsidiaries to supply all information available to the Company in each case reasonably requested by any such Person representative, underwriter, attorney or accountant in connection with such Registration Statement as Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any kept confidential by such 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, Persons unless (xi) the release disclosure of such information is required by law court or regulation or administrative order, (ii) disclosure of such information, in the opinion of counsel to such Person, is requested or required by depositionlaw, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (yiii) such information is or becomes publicly known without a breach of this Agreement, (F) such information is or becomes generally available to such Person on a non-confidential basis from a source the public other than the Company as a result of a disclosure or (z) such information is independently developed failure to safeguard by such Person;
. In the case of a proposed disclosure pursuant to (xxi) or (ii) above, such Person shall be required to cause give the executive officers Company written notice of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating disclosure prior to such Holderdisclosure and, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed requested by the Company, such Holder will deliver to 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.
(at q) Comply with all applicable rules and regulations of the Company’s expense) all copies, other thSEC and make available to its security holders earning statements satisfying t
Appears in 2 contracts
Sources: Registration Rights Agreement (Superior Well Services, INC), Registration Rights Agreement (Superior Well Services, INC)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required to use its reasonable best efforts to effect or cause the Registration and the sale registration of such any Registrable Securities under the Securities Act as provided in accordance with this Agreement, the intended methods of disposition thereof andCompany will, as expeditiously as possible:
(i) 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 the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectusregistration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective; provided, or however, that the Company may discontinue any amendments or supplements thereto, (A) furnish registration of its securities which is being effected pursuant to Section 2 hereof at any time prior to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments effective date of the underwriters and Holders and their respective counsel on such documentsregistration statement relating thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period not in accordance with excess of 180 days (or such period as may be permitted under the terms of this Agreement Securities Act) and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) securities covered by such registration statement during such period in the case of a Shelf Registration, prepare and file accordance 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 intended methods of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement Seller or Sellers thereof set forth in such registration statement; provided, that before filing a registration statement or prospectus, or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements thereto, the Company will furnish to such Registration Statement counsel for the Investor or such Prospectus or for additional informationInvestors copies of all documents proposed to be filed, (C) of which documents will be subject to the issuance by the SEC of any stop order suspending the effectiveness review of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for counsel and no such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such registration statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwritersprospectus, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(iii) furnish to each Seller of such Registrable Securities such number of 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 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 selling Holder or underwriter Seller may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriterSeller;
(xiv) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale covered by such registration statement under the such other securities or “blue sky” sky laws of such jurisdictions as each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwritersSeller shall reasonably request, if any, or their respective counsel reasonably request in writing and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as Seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 taxation or general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(xiv) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiivi) not later than notify each Seller of any such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the effective date Securities Act within the appropriate period mentioned in clause (ii) of this Section 4, of the applicable 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 The Depository Trust Company; provided 's becoming aware that the Company 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 reasonable number of copies of an amended or supplemental prospectus as may satisfy its obligations hereunder without issuing physical stock certificates through be necessary so that, as thereafter delivered to the use purchasers of The Depository Trust Company’s Direct Registration Systemsuch 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;
(xivvii) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC SEC, and make generally available to its security holders, as soon as reasonably practicable, practicable (but no later not more than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing 18 months) after the effective date of the applicable Registration Statementregistration statement, an earnings statement satisfying which shall satisfy 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 Statementthereunder;
(xviiviii) 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 and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by the applicable Registration Statement from and after a date such registration statement not later than the effective date of such Registration Statementregistration statement;
(xviiiix) cause all enter into such customary agreements (including an underwriting agreement in customary form) and take such other actions 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;
(x) obtain a "cold comfort" letter or letters from the Company's independent public accountants in customary form and covering matters of the type customarily covered by "cold comfort" letters as the Investor or the Seller or Sellers of a majority of the Registrable Securities being sold by other Holders (provided that such Registrable Securities constitute at least 25% of the securities covered by such registration statement) shall reasonably request; and
(xi) make available for inspection by any Seller of such Registrable Securities covered by the applicable Registration Statement such registration statement, by any underwriter participating in any disposition to be listed on each securities exchange on which any of the Company’s Common Stock are then listed or quoted effected pursuant to such registration statement 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) by any attorney, accountant or other agent or representative retained by any such Holder Seller 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 all of the Company’s 's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person Seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the registration statement. The Company may require each Holder 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 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 such Holder Seller 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in clause (vi) of this Section 2.04(a)(v)4, such Holder Seller will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registration Statement Registrable Securities until such Holder’s Seller's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (vi) of this Section 2.04(a)(v)4, or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumedand, and if so directed by the Company, such Holder Seller will deliver to the Company (at the Company’s 's expense) all copies, other ththan permanent file copies then in such Seller'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 period mentioned in clause (ii) of 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 4 and including the date when each Seller shall have received the copies of the supplemented or amended prospectus contemplated by clause (vi) of this Section 4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hovnanian Enterprises Inc), Registration Rights Agreement (Hovnanian Enterprises Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Whenever an Investor requests that any Registrable Securities be offered or registered pursuant to this AgreementSection 2.01 or 2.03, through an Underwritten Offering or otherwisesubject to the provisions of such Sections, the Company shall use its reasonable best efforts to effect or cause the such Registration and permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof as expeditiously as reasonably practical, and, in connection with any such request:
(ia) The Company shall as expeditiously as reasonably practical prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement on any form for which the Company then qualifies or Prospectusthat counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use all reasonable best efforts to cause such filed Registration Statement to become 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 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), (A) the Company shall, if practical, furnish to 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 to supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Holders participating prospectus included in such RegistrationRegistration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424, copies Rule 430A, Rule 430B or Rule 430C under the Securities Act and such other documents as such Investor(s) or underwriters may reasonably request in order to facilitate the disposition of all documents prepared the Registrable Securities owned by such Investor(s) and Management Investor(s).
(c) After the filing of the Registration Statement, the Company shall (i) cause the related prospectus to be filedsupplemented by any required prospectus supplement (including by virtue of paragraph (d) below), which documents will and, as so supplemented, to be subject filed pursuant to Rule 424 under the review of such underwriters and such participating Holders and their respective counselSecurities Act, and (B) consider except when a Postponement Event is in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
effect, (ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of disposition by the Shares Registered thereon;
Investors thereof set forth in such Registration Statement or prospectus supplement and (iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to promptly notify each Investor holding Registrable Securities covered by such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments stop order issued or threatened by the SEC or any request 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 the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) ifStatement, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease time when a prospectus relating thereto is required to be true and correct in all material respectsdelivered under the Securities Act, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any an event requiring the preparation of a supplement or amendment to such prospectus so that, as a result thereafter delivered to the purchasers of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made) , not misleading ormisleading, 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, except when a Postponement Event is in either case as effect, promptly as reasonably practicable thereafter, 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 select the underwriter or underwriters in connection therewith (who shall be reasonably acceptable to holders of a majority of the Registrable Securities participating in the Underwritten Offering) and determine their respective roles within the syndicate, and furnish without charge 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 expedite or facilitate the selling Holder disposition of such Registrable Securities in any such Underwritten Offering, including if necessary the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with FINRA. Notwithstanding the foregoing, in any Block Trade, as opposed to a “marketed underwritten offering,” the holders of a majority of the Registrable Securities participating therein shall select the underwriter(s) for such Block Trade from a group of up to five underwriters for such Block Trade that are acceptable to such holders and the managing underwriter or underwriters, if any, an amendment or supplement to such Company (each acting reasonably and promptly following its receipt of notice of a Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;Request for a Block Trade).
(vif) use The Company shall deliver to each participating Investor, its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if anycounsel, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriterunderwriters, if any, without charge, as many copies of the applicable Prospectus prospectus or prospectuses (including each preliminary Prospectusform of prospectus) and any each amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood 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 such Prospectus or any prospectus and each amendment or supplement thereto by each selling Holder participating Investor and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or 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) 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 other documents as such selling Holder or underwriter holders may reasonably request in order to facilitate permit the disposition 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 Registrable Securities by Company has received such Holder or underwriter;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.
(xj) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, 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, and qualify or cooperate with each the selling Holderholders of Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel, 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 each state and other jurisdiction of such jurisdictions within the United States as any selling Holder Investor or managing underwriter or underwriters, if any, or their respective counsel reasonably request 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 reasonably action that may be necessary or advisable to keep enable such registration or qualification in effect for so long as Investors to consummate the disposition of such Registration Statement remains in effect and so as to permit the continuance of sales and dealings Registrable Securities 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 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.
(xio) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the The Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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) shall provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable such Registration Statement from and after a date not later than the effective date of such Registration Statement;.
(xviiip) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of The Company shall cooperate with, and direct the Company’s Common Stock are then listed or quoted transfer agent to cooperate with, such Registering Investors 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)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 Registeredsold after receiving written representations from such Registering Investors that the Registrable Securities represented by the certificates so delivered by such Registering Investor will be transferred in accordance with the Registration Statement and, (C) the sale or placement agent thereforin connection therewith, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained reasonably required by such 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and transfer agent.
(q) Prior to 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 effective date of the Company and to supply all information available Registration Statement relating to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibilityRegistrable Securities, subject to the foregoing, provided that any such 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 will obtain a CUSIP number for information or documents 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Registration Rights Agreement (CLARIVATE PLC), Registration Rights Agreement (CLARIVATE PLC)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant With respect to this Agreementany Piggyback Registration, through an Underwritten Offering or otherwiseCompany, the Company subject to subsections 2(e) above, respectively, shall use reasonable best efforts to effect or cause the Registration registration of all Executive's Parity Registrable Shares that Executive has requested to be included therein in accordance, subject to subsections 2(d), with the intended method(s) of distribution thereof reasonably promptly, and in connection with any such request, Company shall do the sale following:
(1) prepare and file with the SEC a registration statement on any form for which Company then qualifies and that is available for the registration of such the Registrable Securities Shares requested to be registered in accordance with the intended methods method(s) of disposition thereof and:
distribution thereof, include (isubject to subsections 2(d) prepare and file 2(e) above) in the required Registration Statement, including registration on such form all exhibits and financial statements required under the Securities Act Registrable Shares requested to be filed therewithincluded, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish use reasonable efforts to the underwriters, if any, and cause such registration statement to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsbecome effective;
(ii2) prepare and file with the SEC such amendments and post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith registration statement or any prospectus as may be necessary to keep the registration statement effective for a period that shall terminate on the earlier of forty-five (45) days after the registration statement is officially declared effective by the SEC or when all Executive's Parity Registrable Shares covered by such Registration Statement effective in accordance registration statement have been disposed of; and comply with all applicable rules and regulations of the terms of this Agreement SEC and to comply with the provisions of the Securities Act applicable to Company with respect to the disposition of all Executive's Parity Registrable Shares covered by such registration statement during such period in accordance with the intended methods of the Shares Registered thereondisposition by Executive set forth in such registration statement (as it may be amended) or any supplement to any such prospectus;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv3) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) ifExecutive, at any time, time when a prospectus relating to Executive's Parity Registrable Shares covered by the representations and warranties of the Company in any applicable underwriting agreement cease registration statement is required to be true and correct in all material respectsdelivered under the Securities Act, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement preliminary prospectus or the Prospectus prospectus included in such Registration Statement (as then in effect) registration statement or any prospectus supplement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) , not misleading ormisleading, 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 andand Company shall, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, SEC and furnish without charge to Executive a supplement or amendment to such preliminary prospectus, prospectus or prospectus supplement so that, as thereafter delivered to the selling Holder and prospective purchasers of Executive' Parity Registrable Shares being distributed by Executive, such preliminary prospectus, prospectus or prospectus supplement 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 managing underwriter or underwritersstatements therein, if anyin light of the circumstances under which they were made, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancenot misleading;
(vi4) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) if requested by Executive, Company shall cooperate and shall promptly incorporate in a Prospectus prospectus supplement or post-effective amendment to the registration statement at Executive's cost and expense such information concerning Executive and its intended method of distribution as the managing underwriters, if any, and the Holders may it reasonably request requests to be included therein (and which is not inappropriate, in order the reasonable judgment of Company, after consultation with its outside legal counsel), including, without limitation, with respect to permit 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 Securities; Shares and make all required filings of such Prospectus prospectus supplement or post-effective amendment as soon as reasonably practicable possible after being notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x5) on or prior to the date on which the applicable Registration Statement registration statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thuse
Appears in 2 contracts
Sources: Employment Agreement (Powercerv Corp), Employment, Noncompetition, Development and Confidentiality Agreement (Powercerv Corp)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale 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 the provisions of this Agreement, through an Underwritten Offering or otherwise, the Company shall use its commercially reasonable best efforts to effect or cause the Registration offer and the sale of such Registrable Securities under the Securities Act in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall as soon as reasonably practicable and as applicable:
(ia) subject to Section 2, prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC Commission a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish covering such Registrable Securities and use its commercially reasonable efforts to the underwriters, if any, and to the Holders participating in cause such Registration, copies of all documents prepared Registration Statement to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsdeclared effective;
(iib) prepare and file with the SEC 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 amendments, post-effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares Registrable Securities subject thereto for a period ending on the 3rd anniversary earlier of (i) 6 months after the effective date of such Registration Statement and (ii) the date on which all the Registrable Securities subject thereto have been sold pursuant to such Registration Statement;
(ivc) notify the participating Holders and the managing underwriter or underwriterswithin a reasonable time before filing such Registration Statement, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements thereto with the Commission, furnish to one counsel selected by the holders of a majority of the Registrable Securities included in such Registration Statement, Prospectus or amendments or supplements thereto 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 such a supplement to any Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness forming a part of such Registration Statement or any order preventing or suspending has been filed with the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeCommission;
(ve) promptly notify furnish to each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware holder of the occurrence Registrable Securities such number of any event as a result copies of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto in each case including all exhibits and documents incorporated by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoreference therein) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(xf) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel holder reasonably request in writing requests and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as holders to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 or business, subject itself to take any action which would subject it to general taxation or 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);
(xig) 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 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;
(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 Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement;
(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, 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 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 sale 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 that will result in such securities no longer being Registrable Securities, cooperate with and each selling Holder and the managing underwriter or underwritersunderwriter, 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 and not bearing pursuant to such Registration Statement free of any restrictive Securities Act legends; legends and to register representing such Registrable Securities number of shares of Common Stock and registered in such denominations and such names as such selling Holder or the underwriter(s), if any, holders of the Registrable Securities may reasonably request at least two Business Days a reasonable period of time prior to such sale sales of Registrable SecuritiesSecurities pursuant to such Registration Statement; provided 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’s Direct Registration SystemCompany (“DTC”);
(xii) 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;
(xiiis) not later than the effective date of the applicable 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 The Depository Trust CompanyDTC; provided 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 Systemthe facilities of DTC;
(xivt) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter take no direct 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 indirect action prohibited by Regulation M under the underwriting agreement;
(xv) in the case of an Underwritten OfferingExchange Act; provided, obtain for delivery to and addressed to the underwriter or underwriters andthat, 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 that any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts to comply with all prohibition is 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements Company will take all commercially reasonable action 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 Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoprohibition inapplicable; and
(xxiu) otherwise use its commercially reasonable efforts to take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution registration 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 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 this Agreementcontemplated hereby.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement
Registration Procedures. (a) In connection with the Registration and/or sale of Whenever any Registrable Securities are to be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use its commercially reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC as promptly as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective (provided that before filing a Registration Statement or Prospectus, prospectus or any amendments or supplements thereto, (A) the Company shall furnish to the holders of the Registrable Securities covered by such Registration Statement, their underwriters, if any, and their respective counsel and accountants, within a reasonable time prior to the Holders participating in such Registrationfiling thereof, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating Holders holders shall have the reasonable opportunity to object to any information pertaining to such holders that is contained therein and their respective counsel, and (B) consider in good faith the Company will make the corrections reasonably requested by such holders with respect to such information prior to filing any comments of the underwriters and Holders and their respective counsel on such documentsRegistration Statement or prospectus);
(iib) 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 supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with for a period of not less than the terms of this Agreement Lock-up Period and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and the Prospectus used during such period in connection therewith as may be necessary to keep such Registration Statement effective and to comply accordance with the provisions intended methods of disposition by the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of sellers thereof set forth in such Registration Statement;
(ivc) notify the participating Holders and the managing underwriter or underwritersfurnish, if anywithout charge, and (if requested) confirm to each seller of Registrable Securities such advice in writing and provide number of copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesStatement, each amendment and supplement thereto (D) if, at any timein each case including all exhibits and all documents incorporated therein by reference), the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoprospectus) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(xd) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale other securities covered by such Registration Statement under the such securities laws or “blue sky” sky laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwritersseller reasonably requests, if any, or their respective counsel reasonably request in writing and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered owned by the Registration Statement; such seller (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 or otherwise be required to take any action which would qualify but for this subparagraph, (ii) subject it itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(xie) in connection with any sale notify each seller of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and at any time when a prospectus relating thereto is required to be delivered under the managing underwriter 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 underwritersomits any material fact required to be stated therein or necessary to make the statements therein not misleading, if anyand, at the request of any such seller, the Company shall prepare a supplement or amendment to facilitate such prospectus so that, as thereafter delivered to the timely preparation and delivery purchasers of certificates representing 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 sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or listed on each securities exchange on which similar securities issued by the underwriter(s)Company are then listed and, if anynot so listed, may request at least two Business Days prior to such sale of Registrable Securities; provided that be listed on the Company may satisfy its obligations hereunder without issuing physical stock certificates through Nasdaq Global Market or other national securities exchange if the use of The Depository Trust Company’s Direct Registration Systemsecurities qualify to be so listed;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviig) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xviiih) cause enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities covered by being sold or 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwriters, if any, reasonably request in order to expedite or facilitate the disposition of the such Registrable Securities (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 be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, Registration Statement and (E) any attorney, accountant or other agent or representative retained by such Holder or 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 selected by such Holdersoon as reasonably practicable, an earnings statement covering the opportunity 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 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 Registration Statement, each Prospectus included therein registration or filed with the SEC, and each amendment or supplement thereto, comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) holder and their its counsel should be included; and for ;
(l) in the event of the issuance of any stop order suspending the effectiveness of a reasonable period prior to the filing of such Registration Statement, make available upon 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 notice at reasonable times efforts promptly to obtain the withdrawal of such order;
(m) notify the sellers of Registrable Securities and for reasonable periods for inspection the underwriters, if any, as promptly as practicable:
(i) of any request by the parties referred SEC for amendments or supplements to in the Registration Statement or the prospectus or for additional information;
(Aii) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of any proceedings by any Person for such purpose; and
(iii) of the receipt by the Company that are available of any notification with respect to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business suspension of the Company and to supply all information available to qualification of any Registrable Securities for sale under the Company reasonably requested by securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such Person purpose;
(n) furnish for delivery in connection with the closing of any offering of Registrable Securities unlegended certificates representing ownership of the Registrable Securities being sold in such denominations as shall be requested by the sellers or the underwriters;
(o) 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 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 shall may be necessary to enable them the sellers thereof to exercise their due diligence responsibility, subject to consummate the foregoing, provided that any such 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 disposition of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistrable Securities; and
(xxiq) take all other obtain a cold comfort letter from the Company’s independent public accountants in customary steps reasonably necessary to effect form and covering such matters of the Registration, offering and sale type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities.
Securities being sold reasonably request (b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company provided that 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 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company constitute at least 10% of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to securities covered by such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(vStatement), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Rex Energy Corp)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required by the provisions of this Warrant to use reasonable its best efforts to effect or cause the Registration and registration of any of the sale of such Registrable Shares under the Securities in accordance with Act, the intended methods of disposition thereof andCompany shall:
(ia) prepare and file furnish to the required Registration StatementRegistered Holder such number of copies as the Registered Holder shall reasonably request of the prospectus, including all exhibits a preliminary prospectus and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to in conformity with the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments requirements of the underwriters and Holders and their respective counsel on such documentsSecurities Act;
(iib) prepare and file with use its best efforts to register or qualify the SEC such amendments and supplements to such Registrable Shares covered by the Registration Statement and under the Prospectus used securities laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company shall not be required in connection therewith with this subsection 20(b) to qualify as may be necessary a foreign corporation or execute a general consent to keep such Registration Statement effective service of process in accordance with any jurisdiction;
(c) promptly notify the terms of this Agreement 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 provisions requirements of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafterif requested by the Company, prepare the Registered Holder shall immediately cease making offers or sales of Registrable Shares under the Registration Statement and file with the SEC, and furnish without charge return all prospectuses to the selling Company. The Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of the revised prospectuses, the Registered Holder shall be free to resume making offers and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution sales of the Registrable SecuritiesShares; 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;and
(viiid) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of pay the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein expenses incurred by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in complying with its obligations under this Warrant in connection with the offering registration rights, including all registration and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectivefiling fees, use its reasonable best efforts to register or qualifyexchange listing fees, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates expenses for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 preparation of the Registration Statement;
(xvii) provide , prospectus and cause to be maintained a transfer agent any amendments and registrar for all Registrable Securities covered by the applicable Registration Statement from supplements thereto, printing and after a date not later than the effective date photocopy expenses, fees and expenses 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 fees and expenses of accountants for the Company’s officers, employees and but excluding: (i) selling commissions or underwriting discounts incurred by 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 Person Registered Holder in connection with such sales of Registrable Shares under the Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to and (ii) the foregoing, provided that any such 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 fees and expenses 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested counsel retained by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable SecuritiesRegistered Holder.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Common Stock Purchase Warrant (Igi Inc), Common Stock Purchase Warrant (Igi Inc)
Registration Procedures. (a) In connection Whenever the Shareholder has made a Request in accordance with the Registration and/or sale of Section 5.1 that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause shall:
(a) as expeditiously as reasonably practicable after the Registration and receipt by the sale 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 methods of disposition distribution thereof and:
specified in such Request, and shall 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 the Blackout Periods set forth in Section 5.2, to keep such Required Registration Statement or Required Shelf Registration Statement, as the case may be, continuously effective (i) prepare and file in the required 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 StatementStatement 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) or (ii) in the case of a Shelf Registration, including until such time as all exhibits and financial statements required under the Registrable Securities Act to be filed therewithcovered by such Required Shelf Registration Statement have been sold pursuant thereto, and before including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or ProspectusRequired Shelf Registration Statement or the related 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 required by the rules, regulations 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 amendments or supplements thereto, (A) furnish to the underwriters, if any, rules and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsregulations thereunder;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of securities covered by such Registration Statement for the Shares Registered thereonperiod 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 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 Shareholder 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 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 case 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 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 contains an untrue statement of a Shelf Registrationmaterial 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 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 the ADSs representing the Ordinary Shares are then listed and file to be eligible and remain eligible for registration of the ADSs pursuant to Form F-6;
(h) cooperate with the SEC Shareholder and the 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 amendments customary agreements and supplements use reasonable best efforts to take all such other actions as the Shareholder or the underwriters, if any, reasonably 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 Prospectus used 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 cause the Company’s officers, directors, employees and independent accountants to supply all other information reasonably requested by the Shareholder or any such underwriter, attorney, accountant or agent in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivk) notify if such sale is pursuant to an underwritten offering, use reasonable best efforts to obtain “comfort” letters dated the participating Holders 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 in connection with underwritten offerings as the managing underwriter reasonably requests;
(l) use reasonable best efforts to furnish, at the request of the Shareholder on the date such securities are delivered to the underwriters for sale pursuant to such registration or underwritersare otherwise sold pursuant thereto, if anyan 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 registering such Registrable Securities;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and (if requested) confirm such advice in writing and provide copies of the relevant documentsmake available to its security holders, as soon as reasonably practicable after notice thereof is received by the Company (A) when effective date of the applicable Registration Statement or any amendment thereto has been filed or becomes effectiveStatement, or when an earnings statement covering the applicable Prospectus or any amendment or supplement to such Prospectus has been filedperiod 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, (Bwhich 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 written comments by filings required to be made with FINRA;
(p) notify in writing the SEC or 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 or any other Governmental Authority for amendments or supplements to such the Registration Statement or such Prospectus the prospectus or for additional information, information and when same has been filed and become effective;
(Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings by any Person for such purposes, that purpose; and
(Div) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering the sale under the securities or sale in blue sky Laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(vq) promptly notify each selling Holder 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 managing underwriter directors or underwriters, if any, when officers of the Company becomes aware to agree, to enter into customary agreements restricting the sale or distribution of Equity Securities during the period commencing on the date of the occurrence of any event as a result of request (which shall be no earlier than fourteen (14) calendar days prior to the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case expected “pricing” of such Prospectus underwritten offering) and any preliminary Prospectus, in light continuing for not more than ninety (90) calendar days after the date of the circumstances under “final” prospectus (or “final” prospectus supplement if the underwritten offering is made pursuant to a Shelf Registration Statement), pursuant to which they were made) not misleading or, if for any other reason it such underwritten offering shall be necessary during 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 time lesser period to amend or supplement such Registration Statement or Prospectus in order to comply with as is required by the Securities Act lead managing underwriters; 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;
(vir) use its reasonable best efforts to prevent or obtain take all other steps reasonably necessary to effect the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale registration of the Registrable Securities covered by such Prospectus or contemplated hereby. If 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long comparable statement refers to the Shareholder by name or otherwise as such Registration Statement remains in effect and so as to permit the continuance holder of sales and dealings in such jurisdictions any securities of the United States for so long as may Company and if the Shareholder is or would 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities reasonably expected to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist in any filings required deemed to be made with the FINRA and each securities exchange, if any, on which any a controlling person 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in Shareholder shall have the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and right to require (i) the insertion therein of materiallanguage, furnished in form and substance satisfactory to the Shareholder and presented to the Company in writing, which in to the reasonable judgment effect that the holding by the Shareholder of such Holder(s) and their counsel should securities is not to be included; and for construed as a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection recommendation by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties Shareholder of the Company that are available to the Company, and cause investment quality of the Company’s officers, employees securities covered thereby and that such holding does not imply that the independent public accountants who have certified its Shareholder shall assist in meeting any future financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business requirements of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (zii) in the event that such information reference to the Shareholder by name or otherwise is independently developed not required by such Person;
(xx) to cause the executive officers Securities Act or any similar federal statute then in force, the deletion of the Company reference to participate in the customary “road show” presentations Shareholder; provided that may be reasonably requested by with respect to this clause (ii) the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to Shareholder must furnish to the Company an opinion of counsel to such effect, which opinion and counsel shall be reasonably satisfactory to the Company. In connection with any Registration Statement in which the Shareholder is participating, the Shareholder shall furnish to the Company in writing such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters 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 Upon notice by the Company to the Shareholder of any Blackout Period, the Shareholder shall keep the fact of any such Holder agrees notice strictly confidential, and during any Blackout Period, discontinue its offer and disposition of Registrable Securities pursuant to furnish the applicable Registration Statement and the prospectus relating thereto for the duration of the Blackout Period set forth in such information 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 and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions any copies then in its possession of this Agreement.
(c) Each Holder agrees, that, any such prospectus or prospectus supplement. The Shareholder agrees that upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(vclauses (f), such Holder will (o)(ii), (o)(iii) or (o)(iv) above, it shall forthwith discontinue its offer and disposition of Registrable Securities pursuant to such 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 2.04(a)(vclause (o)(ii), or until such Holder it is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and if so directed has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus; provided that the Company shall 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 under clause (a) above with respect to the length of time that effectiveness of a Registration Statement must be maintained by the Companyamount 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 on Form F-6 which registers a number of ADSs that is sufficient to allow the Shareholder to exercise its rights under, such Holder will deliver to and sell its Registrable Securities in the Company (at United States in the Company’s expense) all copiesmanner contemplated by, other ththis Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Allergan PLC), Shareholder Agreements (Teva Pharmaceutical Industries LTD)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required to use commercially reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement, the Company will, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of such the Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewithdistribution thereof, and before filing with the SEC a use its best efforts to cause such Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, become and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsremain effective;
(iib) prepare and file with the SEC amendments and post- effective amendments to such Registration Statement and such amendments and supplements to such Registration Statement and 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 for shelf registration or otherwise necessary to keep such Registration Statement effective for up to 90 days (except to the extent otherwise provided in accordance Section 4(b) with respect to a Designated Shelf Registration) and cause the terms of this Agreement Prospectus 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 of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to Registrable Securities covered by such Registration Statement until the earlier of (x) such 90th day (except to the extent otherwise provided in Section 4(b) with respect to a Designated Shelf Registration) and the Prospectus used in connection therewith (y) such time as may be necessary to keep all Registrable Securities covered by such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease have ceased to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents at its option may determine to maintain such effectiveness for a longer period, whether pursuant to a Shelf Registration or otherwise); PROVIDED that a reasonable time before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the Exchange Act and the rules and regulations adopted by the SEC thereunder), the Company will furnish to the use Holders, the managing underwriter and their respective counsel for review and comment, copies of all 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 any amendment or Prospectus supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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 (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 underwriterany amendment or supplement thereto in connection with such disposition);
(xd) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale covered by such Registration Statement under the such other securities or “blue sky” sky laws of such jurisdictions as each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwritersshall reasonably request, if any, or their respective counsel reasonably request in writing and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as Holder to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered owned by the Registration Statement; provided such Holder, 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 Section 7(d), 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 taxation or general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(xie) in connection with notify each Holder of any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in covered by such denominations and such names as such selling Holder or the underwriter(s)Registration Statement, if any, may request at least two Business Days prior to such sale of Registrable Securities; 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;
(xii) 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 time when a Prospectus relating thereto is required to be retained delivered under the Securities Act within the appropriate period mentioned in accordance with Section 7(b), of the rules and regulations Company's becoming aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of each such exchangea 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 use its at the request of any such Holder, prepare and furnish to such Holder a reasonable best efforts number of copies of an amendment or supplement to cause 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 covered by the applicable such Registration Statement at any time,
(1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to be registered with the Registration Statement or approved by such other governmental agencies or authorities as may be necessary to enable any post-effective amendment, when the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securitiessame has become effective;
(xiii2) not later than of any request by the effective date SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information;
(3) of the applicable issuance by the SEC of any stop order suspending the effectiveness of the Registration StatementStatement or any order preventing the use of a related Prospectus, provide a CUSIP number or the initiation or any overt threats of any proceedings for all Registrable Securities and provide such purposes;
(4) of the applicable transfer agent with printed certificates for receipt by the Company of any written notification of the suspension of the qualification of any of the Registrable Securities which are for sale in a form eligible any jurisdiction or the initiation or any overt threats of any proceeding for deposit with The Depository Trust Companythat purpose; provided that and
(5) if at any time the representations and warranties of the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemcontemplated by paragraph(i)(1) below cease to be true and correct;
(xivg) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC 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, holders an earnings statement satisfying which shall satisfy the provisions of Section 11(a) of the Securities Act and Act, provided that the rules and regulations promulgated thereunder and covering Company shall be deemed to have complied with this paragraph if it has complied with Rule 158 under 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 StatementSecurities Act;
(xviih) provide and use commercially reasonable efforts to cause all such Registrable Securities to be maintained listed on any securities exchange on which the TWX 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 all such Registrable Securities covered by the applicable such Registration Statement from and after a date not no later than the effective date of such Registration Statement;
(xviiii) cause enter into agreements (including underwriting agreements) and take all other appropriate and all commercially reasonable actions in order to expedite or facilitate the disposition of such Registrable Securities covered by and in such connection, whether or not an underwriting agreement is entered into and whether or not 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;registration is an underwritten registration:
(xix1) provide (A) each Holder participating in make such representations and warranties to the Registration, (B) Holders of such Registrable Securities and the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwriters, if any, in form, scope and substance as are customarily made by issuers to underwriters in firm commitment underwritten 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 of a majority in number of the Registrable Securities being sold) addressed to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees Holders and the independent public accountants who have certified its financial statements to make themselves available at reasonable times underwriters covering the matters customarily covered in opinions requested in firm commitment underwritten offerings 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 Person in connection with such Registration Statement other matters as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters Holders of a majority in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale number of the Registrable Securities.
(b) As a condition precedent to any Registration hereunderSecurities being sold and the managing underwriter, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thany;
Appears in 2 contracts
Sources: Restructuring Agreement (Time Warner Inc), Registration Rights Agreement (Time Warner Inc)
Registration Procedures. (a) In connection with When the Registration and/or sale Company is required by the provisions of this Agreement to effect the registration of shares of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseSecurities, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof andshall:
(i) prepare and file with the required Commission a Shelf Registration Statement, including all exhibits and financial statements required under Statement (advance draft copies of which shall be furnished to the holders of Registrable Securities Act to be filed therewith, and before filing with the SEC a included in such Shelf Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on as expeditiously as possible prior to the filing thereof with the SEC) with respect to such documentsshares and use its reasonable best efforts to cause such Shelf Registration Statement to become and remain effective for the Effective Period as described in Section 2.1(c) hereof;
(ii) prepare and file with the SEC such amendments and supplements to such Shelf Registration Statement and the Prospectus prospectuses used in connection therewith as may be necessary to keep such Shelf Registration Statement effective in accordance with and current during the terms of this Agreement Effective Period and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all shares covered by such Shelf Registration Statement, including such amendments and supplements as may be necessary to reflect the intended method of disposition from time to time of the Shares Registered thereonholder or holders of Registrable Securities who have requested that any of their shares be sold or otherwise disposed of in connection with the 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 the prospectuses used in connection therewith to fail to comply with applicable disclosure requirements;
(iii) in the case furnish to each Prospective Seller such number of a Shelf Registrationcopies of each prospectus, prepare including preliminary prospectuses and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used any prospectus, or any free writing prospectus related thereof, in connection therewith as may be necessary to keep such Registration Statement effective and to comply conformity with the provisions requirements of the Securities Act with respect Act, and such other documents as the Prospective Seller may reasonably request in order to facilitate the public sale or other disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statementshares owned by it;
(iv) notify if applicable, register or qualify the participating Holders and 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 managing underwriter public sale or underwriters, if any, and (if requested) confirm such advice in writing and provide copies other disposition of the relevant documentsshares owned by such seller, as soon as reasonably practicable after notice thereof is received by provided that the Company (A) when the applicable Registration Statement shall not be required in connection therewith or any amendment as an election thereto has been filed to qualify to do business or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) file a general consent to service of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company process in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposejurisdiction;
(v) promptly notify each selling Holder and Prospective Seller at any time when a prospectus relating thereto is required to be delivered under the managing underwriter or underwritersSecurities Act, if any, when of (x) the Company becomes aware filing of the occurrence of any event as a result of which the applicable Shelf Registration Statement or the Prospectus included any prospectus or prospectus supplement to be used in such Registration Statement (as then in effect) contains connection therewith, or any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement thereto or any free writing prospectus related thereto, and, with respect to such Registration Statement or Prospectus which will correct such registration statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements when the same has become effective; and schedules, all documents incorporated therein (y) any written comments from the SEC with respect to any filing referred to in clause (x) and any written request by reference the SEC for amendments or supplements to the Shelf Registration Statement or any prospectus or prospectus supplement thereto or any free writing prospectus related thereto;
(vi) the Company shall permit counsel for the Prospective Sellers to review the Shelf Registration Statement and all exhibits amendments and supplements thereto (including those incorporated by reference)as well as all requests for acceleration or effectiveness thereof) a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Shelf Registration Statement without prior notice to such counsel;
(vii) [reserved]
(viii) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Shelf Registration Statement;
(ix) deliver to each selling Holder enter into such customary agreements and each underwriter, if any, without charge, take all such other customary actions as many copies the holders of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale a majority of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may being sold reasonably request in order to expedite or facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(x) make available for inspection by any Prospective Seller and any attorney, accountant or other agent retained by any such Prospective Seller, all reasonable financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and 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 seller, attorney, accountant or agent in connection with the preparation of such Registration Statement;
(xi) permit any Prospective Seller who, 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 the preparation of such Registration Statement;
(xii) provide written notice to each Prospective Seller as soon as the Company becomes aware of any misstatements or omissions which, if not corrected or updated, would reasonably be expected to cause the Shelf Registration Statement or the prospectuses used in connection therewith to fail to comply with applicable disclosure requirements;
(xiii) not later than in the effective date event of the applicable issuance of any stop order suspending the effectiveness of the Shelf 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 The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through or of any order suspending or preventing the use of The Depository Trust Company’s Direct any related prospectus or suspending the registration or qualification of any Registrable Securities included in such Shelf Registration SystemStatement 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) 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, 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoregistration hereunder; and
(xxixv) the Company shall take all other customary steps reasonably reasonable actions necessary to effect expedite and facilitate disposition by each Investor of its Registrable Securities pursuant to the Registration, offering and sale of the Registrable SecuritiesShelf Registration Statement.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to Each Prospective Seller of Registrable Securities shall 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 reasonably require from time to time reasonably request the Prospective Seller for inclusion in writing. Each such Holder agrees to furnish such information to the Company Shelf Registration Statement (and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreementprospectus included therein).
(c) Each Holder agrees, that, upon The Prospective Sellers shall not effect sales of the shares covered by the Shelf Registration Statement after receipt of any facsimile or other written notice from the Company to suspend sales to permit the Company to correct or update, including to add Option Shares or Option Notes, the Shelf Registration Statement or prospectus until such Investor receives copies of a supplemented or amended prospectus that corrects the occurrence of misstatement(s) or omission(s) referred to above and receives notice that any event of post-effective amendment has become effective.
(d) The Company shall have no obligation to provide an underwritten offering for the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition holders of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt dispose of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other ththeir shares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Endeavour International Corp), Securities Purchase Agreement (Endeavour International Corp)
Registration Procedures. (a) In connection with the Registration and/or sale registration obligations of Registrable Securities the Company pursuant to and in accordance with this Agreement, through an Underwritten Offering or otherwise, the Company shall will use its commercially reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof andthereof, of which the Stockholder and the other Investors have notified the Company prior to the filing by the Company of the applicable Registration Statement, as promptly as reasonably practicable, and the Company shall:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectuswith respect to such Registrable Securities, cooperate with underwriters’ counsel in an underwritten offering in connection with all required filings with FINRA and thereafter use its commercially reasonable efforts to cause such Registration Statement to become effective upon filing but in any event as soon as reasonably practicable after the filing of such Registration Statement; provided, that before filing a Registration Statement 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), (A) the Company will furnish to the underwriters, if any, Stockholder and to the Holders participating in such Registration, other Investors copies of all documents prepared 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 review filing of such underwriters and Registration Statement, amendment or supplement, the Company will not file such participating Holders and their respective counselRegistration Statement, and (B) consider 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 or supplement to such Registration Statement to which the Stockholder will have reasonably objected on the grounds that such amendment or supplement does not comply in good faith any comments all material respects with the requirements of the underwriters 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 Holders and their respective counsel on thereafter file such documentsRegistration Statement or amendment or supplement;
(ii) use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with until all of the terms Registrable Securities covered by such Registration Statement have been disposed of this Agreement and to comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all 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 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 Registrable Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of covered by such Registration Statement;
(iii) furnish to the Stockholder, the other Investors and any managing underwriters, without charge, such number of 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 any other Investor;
(iv) notify 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 participating Holders Stockholder and the managing underwriter other Investors reasonably request in writing; provided, that the Company shall not be required to qualify generally to do business, subject itself to taxation or underwriters, if any, and 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 1.7(a)(iv);
(if requestedv) confirm such advice in writing and provide copies of the relevant documents, as soon promptly as reasonably practicable after notice thereof notify the Stockholder and the other Investors, at any time when a prospectus relating thereto is received by required to be delivered under the Company Securities Act, 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 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;
(vi) promptly as reasonably practicable notify the Stockholder and the other Investors (A) when the applicable prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filedbecome effective, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or to amend or to supplement such Prospectus prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, purpose and (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of any of the Registrable Securities for offering or sale in any jurisdiction or the initiation or or, to the knowledge of the Company, threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vivii) use its commercially reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment cause all such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist in any filings required to be made with the FINRA and listed on each securities exchange, if any, on which any of similar securities issued by the Company’s securities Company are then listed or quoted and on each inter-dealer quotation system on which any of or, if no similar securities issued by the Company’s securities Company are then quoted, and in the performance of listed on 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 securities exchange, and use its commercially reasonable best efforts to cause the all such Registrable Securities covered to be listed on such securities exchange reasonably selected by the applicable Registration Statement Company;
(viii) enter into such customary agreements (including underwriting agreements in form, scope and substance as is acceptable to be registered with or approved by the Company acting reasonably) and take all such appropriate and reasonable other governmental agencies or authorities actions as may be necessary to enable the seller or sellers thereof Stockholder, the Investors or the underwriter or underwriters, if any, reasonably request in order to consummate expedite or facilitate the disposition of such Registrable SecuritiesSecurities¸ 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);
(xiiiix) not later than the effective date if such offering is an underwritten offering or if required by a financial institution facilitating any sale of the applicable 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 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration StatementSecurities, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred Stockholder, the other Investors, any underwriter participating in any disposition pursuant to in (A) through (E) abovesuch Registration Statement and any counsel, accountant or other agent retained by the Stockholder and the other Investors or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available related to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company its business as will be reasonably necessary and requested by any such Person in connection with such Registration Statement as shall be necessary Investor(s) or underwriters to enable them to reasonably exercise their due diligence responsibility, subject to the foregoingresponsibilities, provided that each of the Stockholder, the other Investors, any such Person gaining access underwriter and 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;
(x) otherwise 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 in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, which requirement shall be deemed 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 personnel pursuant any successor rule thereto;
(xi) 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 ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use commercially reasonable efforts promptly to this Section 2.04(a)(xixobtain the withdrawal of such order at the earliest practicable time;
(xii) shall agree to if such offering is an underwritten offering or if required by a financial institution facilitating any sale of Registrable Securities, use commercially reasonable efforts to protect furnish to the confidentiality Stockholder, each underwriter and the other Investors one or more comfort letters, addressed to the underwriters, the Stockholder and the Investors, dated the effective date of, or the date of any information regarding the Company which final receipt issued for, such Registration Statement (the Company determines date of the closing under the underwriting agreement for such offering), signed by the Company’s independent public accountants in good faith to be confidential, customary form and covering such matters of which determination such Person is notified, unless (x) the release of such information is required type customarily covered by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or comfort letters in 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 or (z) such information is independently developed by such Personunderwritten offerings;
(xxxiii) if such offering is an underwritten offering or if required by a financial institution facilitating any sale of Registrable Securities, use commercially reasonable efforts to cause provide legal opinions of the executive officers Company’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, each 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 participate the SEC or the staff of the SEC, in each case solely relating to such Registration Statement; and
(xv) use commercially reasonable efforts to procure the customary “road show” presentations that may be cooperation of the Company’s transfer agent in settling any Transfer of Registrable Securities, including (A) with respect to the transfer of any physical share certificates representing shares of Company Common Stock into book-entry form in accordance with any procedures reasonably requested by the managing underwriter Stockholder or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate withthe Investors or the underwriters, and participate (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 each proposed offering contemplated herein and customary selling efforts related thereto; book-entry form) and
(xxi) take all other customary steps reasonably necessary to effect , if required by the RegistrationCompany’s transfer agent, offering and sale delivering an opinion of the Registrable SecuritiesCompany’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) As a condition precedent The Company agrees not to file or make any amendment to any disclosure regarding the Stockholder or any other Investor in any Registration hereunderStatement 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 binding on each other Investor), in its sole discretion, unless and to the extent such disclosure is required by applicable Law.
(c) The Company may require each Holder 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 and 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 HolderInvestor, its ownership of Registrable Securities and other matters as applicable, that is required by applicable Law to be disclosed in the Registration Statement, the Company may exclude the Stockholder’s and such Investor’s, as applicable, Registrable Securities from time to time reasonably request in writing. Each 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 this AgreementRegistration Statement.
(cd) Each Holder agrees, The Stockholder agrees that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v1.7(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 pursuant covered by a Registration Statement or the related prospectus and such notice reasonably requests such discontinuance, that the Stockholder shall discontinue, and shall cause each Investor to discontinue, disposition of any Registrable Securities covered by such Registration Statement or the related prospectus until such Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 2.04(a)(v)1.7(a)(iii) hereof, which supplement or amendment shall be prepared and furnished as soon as practicable, or until such Holder is the Stockholder and the other Investors are advised in writing by the Company that the use of the Prospectus 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 so directed requested by the Company, such Holder will deliver 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 Company’s expensetime of receipt of such request. As soon as practicable (and in any event no later than two (2) all copiesBusiness 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 thInvestors. 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. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Laws as provided in this Agreement or, as applicable, the Holders sell or seek to sell Registrable Securities under the Shelf Registration Statement as provided in Section 3 of this Agreement, the Company will, as expeditiously as possible:
(i) prepare and file with the sale of Commissions a Registration Statement with respect to such Registrable Securities and use its reasonable efforts to cause such Registration Statement to become effective; provided, the Company may discontinue any registration of its securities which is being effected pursuant to Section 4 at any time prior to the effective date of the registration statement relating thereto;
(ii) prepare and file with the Commissions such amendments and supplements to such Registration Statement and any prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the Effectiveness Period in the case of the Shelf Registration Statement or for a period not in excess of 60 days (or such shorter period during which the distribution of securities thereunder continues) in the case of Registration Statements filed pursuant to Section 4 of this Agreement, cause the related prospectus to be supplemented by any prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to the Securities Laws and to comply with the provisions of the Securities Laws with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof and:
set forth in such Registration Statement (i) prepare and file the required Registration Statementso long as such intended methods of disposition are commercially reasonable); provided, including all exhibits and financial statements required under the Securities Act to be filed therewith, and that before filing with the SEC a Registration Statement or Prospectusprospectus, or any amendments or supplements thereto, (A) or any prospectus supplement, the Company will furnish to the underwriters, if any, and to one counsel selected by the Holders participating in of a majority of the Registrable Securities covered by such RegistrationRegistration Statement to represent all Holders of Registrable Securities covered by such Registration Statement, copies of all documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case furnish to each seller of a Shelf Registration, prepare and file with the SEC such amendments and supplements to Registrable Securities such number of copies of such Registration Statement and the Prospectus used of each amendment and supplement thereto (in connection therewith as may be necessary to keep each case including all exhibits and documents incorporated by reference), such Registration Statement effective and to comply with the provisions number of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any of each amendment or and supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if anythereto, in connection conformity with the offering and sale requirements of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) Laws, and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriterseller;
(xiv) on if requested by the managing underwriter or prior underwriters (if any) or the Holders of a majority in aggregate principal amount of the Registrable Securities being sold in connection with an underwritten offering, (a) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters (if any), their counsel, such Holders or Holders' Counsel determine is reasonably necessary to be included therein, (b) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the date on which Company has received notification of the applicable Registration Statement is declared matters to be incorporated in such prospectus supplement or post-effective amendment, and (c) supplement or becomes effective, make amendments to such registration statement.
(v) use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale covered by such registration statement under the such other securities or “blue sky” sky laws of such jurisdictions as each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwritersseller shall reasonably request, if any, or their respective counsel reasonably request in writing and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 (v), 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 taxation or general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(xivi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiivii) not later than notify each seller of any such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the effective date Securities Laws within the appropriate period mentioned in clause (ii) of this Section 5, of the applicable 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 The Depository Trust Company; provided 's becoming aware that the Company 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 reasonable number of copies of an amended or supplemental prospectus as may satisfy its obligations hereunder without issuing physical stock certificates through be necessary so that, as thereafter delivered to the use purchasers of The Depository Trust Company’s Direct Registration Systemsuch 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;
(xivviii) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC Commissions, and make generally available to its security holders, as soon as reasonably practicable, practicable (but no later not more than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing eighteen months) after the effective date of the applicable Registration Statementregistration statement, an earnings statement satisfying which shall satisfy 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 Statementthereunder;
(xviiix) use its reasonable efforts to list such Registrable Securities on any Securities Exchange on which the Subordinate Voting Shares are then listed, if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange, and to provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by the applicable Registration Statement from and after a date such registration statement not later than the effective date of such Registration Statement;
(xviiix) cause all enter into such customary agreements (including an underwriting agreement in customary form) and take such other actions as sellers of a majority of shares of such Registrable Securities or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(xi) use its reasonable efforts to obtain a "cold comfort" letter or letter from the Company's independent public accountants in customary form and covering matters of the type customarily covered by "cold comfort" letters as the seller or sellers of a majority of shares of such Registrable Securities shall reasonably request (provided that Registrable Securities constitute at least 25% of the securities covered by such Registration Statement);
(xii) make available for inspection by representatives of the sellers of such Registrable Securities covered by the applicable Registration Statement such registration statement, by any underwriter participating in any disposition to be listed on each securities exchange on which any of the Company’s Common Stock are then listed or quoted effected pursuant to such registration statement 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) by any attorney, accountant or other agent or representative retained by such Holder sellers 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 all of the Company’s 's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, registration statement (subject to each party referred to in this clause (xii) entering into customary confidentiality agreements in a form reasonably acceptable to the foregoing, provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xixCompany); and
(xiii) shall agree to use its reasonable efforts to protect (taking into account the confidentiality interests 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 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 or (z) such information is independently developed by such Person;
(xxCompany) to cause make available the senior executive officers of the Company to participate in the customary “"road show” " presentations that may be reasonably requested by the Holders and the managing underwriter or underwriters in any Underwritten Offering and otherwise underwritten offering; provided that the participation of such senior executive officers shall not interfere with the conduct of their duties to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company. The Company may require each Holder seller of Registrable Securities as to which any Registration registration is being effected 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 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 such Holder of Registrable Securities 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in clause (vii) of this Section 2.04(a)(v)5, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registration Statement Registrable Securities until such Holder’s 's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (vii) of this Section 2.04(a)(v)5, or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumedand, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s 's expense) all copies, other ththan 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 periods mentioned in clause (ii) of this Section 5 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to clause (vii) of this Section 5 and including the date when each seller of Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by clause (vii) of this Section 5.
Appears in 2 contracts
Sources: Registration Rights Agreement (Quebecor Printing Inc), Registration Rights Agreement (Quebecor Printing Inc)
Registration Procedures. Whenever any Representative Holder or the Investors (aeach, a “Registering Security Holder”) In connection with the Registration and/or sale of requests that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering Section 5.1 or otherwiseSection 5.2, the Company shall will use its reasonable best efforts to effect or cause the Registration and the sale registration of such Registrable Securities in accordance with as promptly as is practicable, including the intended methods of disposition thereof andfollowing:
(ia) The Company will as expeditiously as possible prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or on any amendments or supplements thereto, (A) furnish form for which the Company then qualifies and which counsel for the Company deems appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the underwriters, if anyintended method of distribution thereof, and use its commercially reasonable efforts to cause such filed Registration Statement to become and remain effective for the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;period specified herein.
(iib) The Company will prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the applicable period specified 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 accordance with force) under the terms of this Agreement Securities Act; and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and during the Prospectus used applicable period in connection therewith as may be necessary to keep accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement effective and as so amended or to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;Prospectus as so supplemented.
(ivc) notify the participating Holders and the managing underwriter or underwritersThe Company will, if any, and (if requested) confirm prior to filing such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment or supplement thereto, furnish to the Registering Security Holder and each applicable managing Approved Underwriter, if any, copies 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 confirm such notice in writing), (i) 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 filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has been declared or becomes effective, (iii) of the occurrence of any event requiring the preparation of a supplement or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filedso 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 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 amendment, (Biv) if the representations and warranties of the Company contained in any agreement contemplated by Section 5.4(h) hereof (including any underwriting agreement) cease to be true and correct, (v) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Evi) 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 offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
purpose and (vvii) promptly notify each selling of the Company’s determination that a post-effective amendment to a Registration Statement would be appropriate. The Registering Security Holder and the managing underwriter or underwritersagrees that, if any, when upon receipt of any notice from the Company becomes aware of the occurrence of any event as a result of which the applicable kind described in the preceding sentence, the Registering Security Holder will, if directed by the Company in such notice, forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until receipt by the Registering Security Holder and the Approved Underwriters of the copies of such supplemented or amended Prospectus and, if so directed by the Company, the Registering Security Holder will deliver to the Company all copies, other than permanent file copies then in the Registering Security Holder’s possession, of the most recent Prospectus included in covering such Registrable Securities at the time of receipt of such notice. In the event the Company gives such notice, the Company will extend the period during which such Registration Statement (will be deemed effective as then in effectcontemplated by Section 5.4(a) contains any untrue statement by the number of a material fact or omits to state a material fact necessary to make days during the statements therein (in period from and including the case date of the giving of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge notice to the selling date when the Company will make available to the Registering Security Holder and the managing underwriter such supplemented 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;amended Prospectus.
(vig) The Company will use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of a Registration Statement, or the lifting of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution suspension of the Registrable Securities; and make all required filings qualification (or exemption from qualification) of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or for sale in any amendment or supplement theretojurisdiction, at the earliest possible moment.
(h) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other documents actions as such selling Holder or underwriter may are reasonably request required in order to expedite or facilitate the disposition sale of such Registrable Securities.
(i) The Company will, upon the reasonable request of the Registrable Securities by such Registering Security Holder or underwriter;
(x) on or prior to and the date on which the applicable Registration Statement is declared effective or becomes effectivemanaging Approved Underwriter, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, cause to be furnished to the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Registering Security Holder and the managing underwriter or underwritersto each Approved Underwriter a signed counterpart, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter Registering Security Holder or underwriterssuch Approved Underwriter, of (i) an opinion from the Company’s outside or opinions of 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 addressed to the underwriter or underwriters and, to the extent agreed by the Company’s independent certified public accountants, each selling Holder, Company and (ii) a comfort letter or comfort letters (and updates thereof) from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) accountants, each in customary form and content for covering such matters of the type of Underwritten Offeringcustomarily covered by opinions or comfort letters, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicableas the case may be, dated as the date of execution of Registering Security Holder or the underwriting agreement and brought down to the closing under the underwriting agreement;managing Approved Underwriter may reasonably request.
(xvij) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and The Company will 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, Security Holders 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;SEC thereunder applicable thereto.
(xviik) provide and The Company will use commercially reasonable efforts to cause to be maintained a transfer agent and registrar for all such 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 similar Securities issued by the Company’s Common Stock Company are then listed or, if not so listed, on a national securities exchange or quoted and on each inter-dealer any national quotation system on which any of the Company’s Common Stock are then quoted, including the filing of any required supplemental listing application;system.
(xixl) provide (A) each Each Security Holder participating in the Registrationwho is an officer, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale director or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties employee of the Company that are will use reasonable best efforts to take all actions, including making himself or herself available to the Companyparticipate and, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably if requested by the managing underwriter Board (or underwriters its designee), participating in any Underwritten Offering and otherwise to facilitateroadshow or other investor presentation, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect expedite or facilitate the Registration, offering and sale of the such Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Security Holders Agreement, Security Holders Agreement (Skullcandy, Inc.)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale Company is required to effect the registration of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use its commercially reasonable best efforts to effect or cause and facilitate the Registration registration, offering and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof as promptly as is practicable and, pursuant thereto, the Company shall as expeditiously as possible and as applicable:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectuswith respect to such Registrable Securities, make all required filings required in connection therewith and (if the Registration Statement is not automatically effective upon filing) cause such Registration Statement to become effective as promptly as practicable. Before filing a Registration Statement or any amendments or supplements theretothereto (excluding, (A) for the avoidance of doubt, the filing of any document under the Exchange Act incorporated by reference therein), the Company shall, at the Company’s expense, furnish to counsel to the underwriters, if anyHolders for such registration copies of all documents proposed to be filed, and give counsel to the Holders participating in such Registration, copies of all registration a reasonable opportunity to review and comment on such documents prepared to be filed, which documents will be subject and keep such Holders reasonably informed as to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsregistration process;
(iib) prepare and file with the SEC such amendments and supplements to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with until all of the terms Registrable Securities covered by such Registration Statement have been disposed of this Agreement and use its commercially reasonable efforts to comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all the Registrable Securities covered by such Registration Statement in accordance with the intended method or methods of disposition by the Shares Registered thereonsellers of such Registrable Securities set forth in such Registration Statement or Prospectus;
(iiic) furnish to each Holder participating in the case registration, without charge, such number of a Shelf Registration, prepare copies of the Registration Statement and file with the SEC such amendments and supplements any post-effective amendment to such Registration Statement and such number of copies of the Prospectus used included in connection therewith as may be necessary to keep such Registration Statement effective (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 in each case as such Holder may reasonably request, including in order to comply with the provisions of the Securities Act with respect to facilitate the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after Registrable Securities owned by such Holder (it being understood that the effective date Company consents to the use of such the Prospectus and any amendment or supplement to the Prospectus by the Holders covered by the Registration Statement;
(iv) notify the participating Holders Statement and the managing underwriter or underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendments or supplements to the Prospectus);
(d) use its commercially reasonable efforts to (i) register or qualify such Registrable Securities under such other securities or blue-sky laws of such U.S. jurisdiction(s) as any Holder participating in the registration or any managing underwriter reasonably requests and (ii) do any and all other acts and things that may be necessary or reasonably advisable to enable such Holder and each underwriter, if requested) confirm any, to consummate the disposition of such advice Holder’s Registrable Securities in writing and provide copies of the relevant documentssuch jurisdiction(s); provided, as soon as reasonably practicable after notice thereof is received by 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);
(Ae) promptly notify each Holder participating in the registration and the managing underwriters of any Underwritten Offering:
(i) each time when the applicable Registration Statement, any pre-effective amendment thereto, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment thereto has been filed or becomes effectivethereto, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(Bii) of any oral or written comments by the SEC or of any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for any additional information, information regarding such Holder;
(Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for any such purposes, purpose; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for offering sale under the applicable securities or sale in any jurisdiction or the initiation or threatening blue-sky laws of any proceeding for such purposejurisdiction;
(vf) promptly notify each selling Holder and participating in such registration, at any time when a Prospectus relating thereto is required to be delivered under the managing underwriter or underwritersSecurities Act, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or that would cause the Prospectus included in such Registration Statement (as then in effect) contains any to contain an untrue statement of a material fact or omits to state a material omit any fact necessary to make the statements made therein (in the case of such Prospectus and any preliminary Prospectus, 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 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 light of the circumstances under which they were made;
(g) 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 misleading 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 such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on any securities exchange, use its commercially reasonable efforts to cause such Registrable Securities to be listed on a national securities exchange selected by the Company after consultation with the Holders participating in such registration;
(j) 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 Statement;
(k) make available for inspection by any other reason it shall be necessary during such time period Holder participating in the registration, any underwriter participating in any Underwritten Offering pursuant to amend or supplement such Registration Statement and any attorney, accountant or Prospectus other agent retained by any such Holder or underwriter for such purpose, all corporate documents, financial and other records relating to the Company and its business reasonably requested by such Holder or underwriter and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in order connection with such registration or offering and make senior management of the Company and the Company’s independent accountants available for customary due diligence and drafting sessions; provided, that any Person 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 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 reasonable written notice and opportunity to object;
(l) otherwise use its commercially reasonable efforts to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare all applicable rules and file with regulations of the SEC, and furnish without charge make available to the selling Holder and the managing underwriter or underwritersits shareholders, if anyas soon as reasonably practicable, an amendment 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 supplement to such any successor rule thereto) covering the period of at least twelve (12) months beginning with the first (1st) day of the Company’s first full fiscal quarter after the effective date of the applicable Registration Statement Statement, which requirement shall be deemed 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 Prospectus which will correct such statement or omission or effect such complianceany successor rule thereto;
(vim) use its reasonable best efforts to prevent or obtain in the withdrawal case of any stop order or other order suspending the use an Underwritten Offering of any preliminary or final Prospectus;
(vii) Registrable Securities, promptly incorporate in a supplement to the Prospectus supplement or a post-effective amendment to the Registration Statement such information as is reasonably requested by the managing underwriters, if any, and the Holders may reasonably request underwriter(s) or any Holder participating in such Underwritten Offering to be included therein in order therein, the purchase price for the securities to permit be paid by the intended method underwriters and any other applicable terms of distribution of the Registrable Securities; such Underwritten Offering, and promptly 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;
(viiin) 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 selling Holder and each underwriter, if any, without chargeparticipating 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 many conformed copies as such Holder or underwriter may reasonably request 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 Registration Statement and Prospectus, on the effective date of any amendment or post-effective amendment theretoto the Registration Statement and at the closing of the offering, including financial statements 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 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;
(ixp) deliver to each selling Holder and each underwriterin the case of an underwritten offering of Registrable Securities, if any, without charge, as many copies make senior management of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents available, to the use of such Prospectus or any amendment or supplement thereto extent requested by each selling Holder and the underwritersmanaging underwriter(s), if any, to assist in connection with the offering and sale marketing of the Registrable Securities covered by to be sold in such Prospectus or any amendment or supplement thereto) underwritten offering, including the participation of such members of senior management of the Company in “road show” presentations and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities by to be sold in such Holder or underwriterunderwritten 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;
(xq) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution Holders 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold and not bearing pursuant to such Registration Statement free of any restrictive Securities Act legends; legends and to register representing such Registrable Securities number of shares of Common Stock and registered in such denominations and such names as such selling Holder or the underwriter(s), if any, Holders of the Registrable Securities may reasonably request at least two Business Days a reasonable period of time prior to such sale sales of Registrable SecuritiesSecurities pursuant to such Registration Statement; provided 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;
(xii) 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;
(xiiir) not later than the effective date of the applicable 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 which are in a form eligible for deposit with The Depository Trust Company; provided 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
(xivs) in otherwise use its commercially reasonable efforts to take or cause to be taken all other actions necessary or reasonably advisable to effect the case registration, marketing and sale of an Underwritten Offering, obtain for delivery to and addressed such Registrable Securities contemplated by this Agreement. Each Holder shall furnish to the selling Holders Company in writing such information regarding itself and the underwriter or underwriters, an opinion from distribution proposed by it as the Company’s outside counsel in customary form and content Company may reasonably request 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 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 use in connection with quarterly period financial statements if applicablea Registration Statement or Prospectus, dated the date of execution of the underwriting agreement and brought down to the 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 Company shall not be obligated to effect any registration 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 such Holder’s Registrable Securities covered by the applicable Registration Statement from unless 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by until such 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 each amendment or supplement thereto, and to require the insertion therein of material, shall have furnished to the Company in writing, which in the reasonable judgment of writing such Holder(s) and their counsel should be included; and for a reasonable period prior information. Each Holder agrees to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of notify the Company that are available to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business as promptly as practicable of the Company and to supply all any inaccuracy or change in information available previously furnished to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter Holder or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of that would cause the kind described Prospectus included in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until to contain an untrue statement of a material fact regarding such Holder’s receipt 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 copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, circumstances under which they were made and if so directed by to furnish to the Company, as promptly as practicable, any additional information required to correct and update the information previously furnished by such Holder will deliver such that such Prospectus shall not contain any untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omit to state a material fact regarding such Holder or the Company (at distribution of such Registrable Securities necessary to make the Company’s expense) all copies, other thstatements therein not misleading in light of the circumstances under which they were made.
Appears in 2 contracts
Sources: Shareholder Agreement (Riot Blockchain, Inc.), Stock Purchase Agreement (Riot Blockchain, Inc.)
Registration Procedures. (a) In connection with If and whenever the Registration and/or Company is required to use its best efforts to take action pursuant to any Federal or state law or regulation to permit the sale or other disposition of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering that are then held or otherwise, that may be acquired upon exercise of the Company shall use reasonable best efforts Warrants in order to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Article 6, the Company shall, as expeditiously as practicable:
(a) prepare and file with the SEC, as soon as 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 and 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 such the Registrable Securities in accordance with the intended method or methods of disposition thereof and:
(idistribution thereof, subject to Section 6.1(d) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewithhereof, and use its best efforts to cause such Registration Statements to become effective; provided that before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments amendment or supplements thereto, (A) including documents incorporated by reference after the initial filing of any Registration Statement, the Company will furnish to the Holders of the Registrable Securities covered by such Registration Statements and the underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsunderwriters;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with for a reasonable period not to exceed 180 days; cause the terms of this Agreement 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 such period in accordance with the intended methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement or supplement to such Prospectus;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective; (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, ; (Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose; (Div) if, if at any time, time any of the representations and warranties of the Company in any applicable underwriting agreement cease contemplated by paragraph (m) below ceases to be true and correct in all material respects, and ; (Ev) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
purposes; and (vvi) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as that makes any statement of a result material fact made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of which any changes in the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains so that they will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusa Registration Statement at the earliest possible moment;
(viie) promptly if reasonably requested by the managing underwriters, immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to underwriters believe (on advice of counsel) should be included therein in order as required by applicable law relating to permit such sale of Registrable Securities, including, without limitation, information with respect to the intended method of distribution purchase price being paid for the Registrable Securities by such underwriters and with respect to any other terms of the Registrable Securitiesunderwritten (or "best efforts" underwritten) 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;
(viiif) furnish to each selling Holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy of the applicable Registration Statement and any amendment or post-effective amendment theretotherein, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ixg) deliver to each selling Holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus or Prospectuses (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use of such Prospectus or any amendment or supplement thereto by each of the selling Holder Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and cooperate with each the selling HolderHolders of Registrable Securities, 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” Blue Sky laws of each state and other jurisdiction of such jurisdictions within the United States as any selling Holder or managing underwriter reasonably requests in writing, keep each such registration or underwriters, if any, or their respective counsel reasonably request in writing 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 keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in any such jurisdiction where it is not then at the time so subject;
(xii) in connection cooperate with any sale the selling Holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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 within the United States as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiik) not later than upon the occurrence of any event contemplated by Section 6.4(c)(vi) above, prepare a post-effective date of the applicable 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 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery amendment or supplement 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 or 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 being sold thereunder, such Prospectus will not contain an untrue statement of a date material fact or omit to state any material fact necessary to make the statements therein not later than the effective date of such Registration Statementmisleading;
(xviiil) with respect to each issue or class of Registrable Securities, use its best efforts to 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 automated 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)system, if any, on which similar securities issued by the Company are then listed if requested by the Holders of a majority of such issue or class of Registrable Securities;
(m) enter into such agreements (including any underwriting agreement) and take all such other action reasonably required in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, if the registration is in connection with an underwritten offering (i) make such representations and warranties to the underwriters in such 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 shall be in form, scope and substance reasonably satisfactory to the underwriters) addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters; (iii) obtain "cold comfort" letters and updates thereof from the Company's 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 underwriters in connection with underwritten offerings; (iv) set forth in full in any underwriting agreement entered into the indemnification provisions and procedures of Section 6.5 hereof with respect to all parties to be indemnified pursuant to said Section; and (v) deliver such documents and certificates as may be reasonably requested by the underwriters to evidence compliance with clause (i) 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 as and to the extent required hereunder;
(n) make available for inspection by one or more representatives of the Holders of Registrable Securities being sold, any underwriter participating in any disposition pursuant to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agentregistration, and (E) any attorney, attorney or accountant or other agent or representative retained by such Holder Holders 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other recordsrecord, pertinent corporate documents and properties of the Company that are available to the Company, and cause the Company’s 's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person representatives, in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretosuch; and
(xxio) otherwise use its best efforts to comply with all applicable Federal and state regulations; and take all such other customary steps action as may be reasonably necessary or advisable to effect enable each such Holder and each such underwriter to consummate the Registration, offering and sale of or disposition in such jurisdiction or jurisdictions in which any such Holder or underwriter shall have requested that the Registrable Securities.
(b) As a condition precedent to any Registration hereunderSecurities 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 selection of underwriters, and the distribution of any preliminary prospectus included in the Registration Statement, and may include within the coverage thereof additional shares of Common Stock or other securities for its own account or for the account of one or more of its other security holders. The Company may require each Holder Seller of Registrable Securities 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 as may otherwise be required by the Securities Act to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request be included in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thStatement.
Appears in 2 contracts
Sources: Warrant Agreement (Zevex International Inc), Warrant Agreement (Zevex International Inc)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale 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 the provisions of this Agreement, through an Underwritten Offering or otherwise, the Company Parent shall use its commercially reasonable best efforts to effect or cause the Registration offer and the sale of such Registrable Securities under the Securities Act in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto Parent shall as soon as reasonably practicable and as applicable:
(ia) subject to Section 2, prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC Commission a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish covering such Registrable Securities and use its commercially reasonable efforts to the underwriters, if any, and to the Holders participating in cause such Registration, copies of all documents prepared Registration Statement to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsdeclared effective;
(iib) prepare and file with the SEC 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 amendments, post-effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares Registrable Securities subject thereto for a period ending on the 3rd anniversary earlier of (i) 6 months after the effective date of such Registration Statement and (ii) the date on which all the Registrable Securities subject thereto have been sold pursuant to such Registration Statement;
(ivc) notify the participating Holders and the managing underwriter or underwriterswithin a reasonable time before filing such Registration Statement, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements thereto with the Commission, furnish to one counsel selected by the holders of a majority of the Registrable Securities included in such Registration Statement, Prospectus or amendments or supplements thereto 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 Parent receives notice thereof, of the time when such Registration Statement has been declared effective or such a supplement to any Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness forming a part of such Registration Statement or any order preventing or suspending has been filed with the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeCommission;
(ve) promptly notify furnish to each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware holder of the occurrence Registrable Securities such number of any event as a result copies of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto in each case including all exhibits and documents incorporated by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoreference therein) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(xf) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel holder reasonably request in writing requests and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as holders to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered owned by the Registration Statementsuch holders; provided provided, that the Company will Parent shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or business, subject itself to take any action which would subject it to general taxation or 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);
(xig) 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, making appropriate officers of Parent 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 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 sale 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 that will result in such securities no longer being Registrable Securities, cooperate with and each selling Holder and the managing underwriter or underwritersunderwriter, if any, with (i) a written legal opinion of Parent’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of registrants’ counsel to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legendsunderwriters in underwritten registered offerings; and to register such Registrable Securities in such denominations and such names as such selling Holder or (ii) on the underwriter(s), if any, may request at least two Business Days prior to such sale date of Registrable Securities; 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;
(xii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if anyapplicable Prospectus, 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 effective date of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required post-effective amendment 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 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 underwriter or 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;
(xiiio) 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 Parent, to participate in the preparation of such Registration Statement and to require the insertion therein of language, furnished to Parent 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 Parent 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 the applicable 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 The Depository Trust CompanyDTC; provided provided, that the Company Parent may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemthe facilities of DTC;
(xivt) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter take no direct 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 indirect action prohibited by Regulation M under the underwriting agreement;
(xv) in the case of an Underwritten OfferingExchange Act; provided, obtain for delivery to and addressed to the underwriter or underwriters andthat, to the extent agreed by the Company’s independent certified public accountantsthat any prohibition is applicable to Parent, each selling Holder, a comfort letter from the Company’s independent certified public accountants (and the independent certified public accountants with respect Parent will take all commercially reasonable action 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoprohibition inapplicable; and
(xxiu) otherwise use its commercially reasonable efforts to take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution registration 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 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 this Agreementcontemplated hereby.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Registration Rights Agreement (KLX Energy Services Holdings, Inc.), Registration Rights Agreement (Quintana Energy Services Inc.)
Registration Procedures. (a) In connection with the filing of any Registration and/or sale of Registrable Securities Statement pursuant to this Agreement, through an Underwritten Offering Sections 2 or otherwise3 hereof, the Company shall use reasonable best efforts (and shall cause each Guarantor to) effect such registrations to effect or cause the Registration and permit the sale of such Registrable Securities securities covered thereby in accordance with the intended method or methods of disposition thereof and:thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company hereunder, the Company shall (and shall cause each Guarantor to):
(ia) prepare Prepare and file with the SEC as soon as practicable after the date hereof but in any event on or prior to the Filing Date, the Exchange Registration Statement or if the Exchange Registration Statement is not filed because of the circumstances contemplated by Section 2(j) hereof, a Shelf Registration as prescribed by Section 3 hereof, and use its best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided that, if (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required Registration Statement, including all exhibits and financial statements required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to be filed therewithsell Exchange Notes during the Applicable Period relating thereto, and before filing with the SEC a any Registration Statement or Prospectus, Prospectus or any amendments or supplements theretothereto the Company shall (and shall cause each Guarantor to), (A) if requested, furnish to and afford the Holders of the Registrable Notes to be registered pursuant to such Shelf Registration Statement, each Participating Broker-Dealer, the managing underwriters, if any, and each of their respective counsel, a reasonable opportunity to the Holders participating in such Registration, review copies of all such documents prepared (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least 5 Business Days prior to such filing). The Company 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 contains an untrue statement of a 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 Securities Act.
(b) 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 review 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 underwriters changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and such participating Holders and their respective counselexecute, and (B) consider 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 good faith any comments of the underwriters and Holders and their respective counsel on such documents;a timely manner.
(iic) prepare Prepare and file with the SEC such pre-effective amendments and supplements post-effective amendments to such each Shelf Registration Statement and or Exchange Registration Statement, as the Prospectus used in connection therewith case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in accordance with force) promulgated under the terms of this Agreement Securities Act; and to 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, voluntarily take any action that would result in selling Holders of the Shares Registered thereon;Registrable Notes covered by a Registration Statement or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Notes or such Exchange Notes during that period, unless such action is required by applicable law, rule or regulation or permitted by this Agreement.
(iiid) Furnish to such selling Holders and Participating Broker-Dealers who so request in writing (i) upon the case Company’s receipt, a copy of a Shelf Registration, prepare and file with the order of the SEC such amendments and supplements to declaring such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep any post effective amendment thereto effective, (ii) such reasonable number of copies of such Registration Statement effective 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 Prospectus included in such Registration Statement (including each preliminary Prospectus) and each amendment and supplement thereto, and such reasonable number of copies of the final Prospectus as filed by the Company and each Guarantor pursuant to comply Rule 424(b) (or any similar provisions then in force) under the Securities Act, in conformity with the provisions requirements of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
and each amendment and supplement thereto, and (iv) notify the participating Holders such other documents (including any amendments required to be filed pursuant to clause (c) of this Section 5), as any such Person may reasonably request in writing. The Company and the Guarantors hereby consent to the use of the Prospectus by each of the selling 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 hereof, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof 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, the Company shall notify in writing the selling Holders of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, the managing underwriter or underwriters, if any, and each of their respective counsel promptly (if requestedbut in any event within 2 Business Days) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or same has become effective (including in such notice a written statement that any amendment or supplement to such Prospectus has been filedHolder may, (B) upon request, obtain, without charge, one conformed copy of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus post-effective amendment including financial statements and schedules, documents incorporated or for additional informationdeemed to be incorporated by reference and exhibits), (Cii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or of any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (Diii) if, if at any time, time when a Prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Notes the representations and warranties of the Company and any Guarantor contained in any applicable agreement (including any underwriting agreement agreement) contemplated by Section 5(n) hereof cease to be true and correct in all material respectscorrect, and (Eiv) of the receipt by the Company 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 offering offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose;
, (v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result event, the existence of which the applicable Registration Statement or the Prospectus included any condition of any information becoming known that makes any statement made in such Registration Statement (as then or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in effect) contains any material respect or that requires the making of any changes in, or amendments or supplements to, such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement and the Prospectus, it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made, not misleading, (vi) not misleading or, if of any reasonable determination by the Company or any Guarantor that a post-effective amendment to a Registration Statement would be appropriate and (vii) of any request by the SEC for any other reason it shall be necessary during such time period amendments to amend or supplement such the Registration Statement or supplements to the Prospectus or for additional information relating thereto.
(f) Use commercially reasonable 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 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 comply with use commercially reasonable efforts to obtain the withdrawal of any such order at the earliest possible date.
(g) If (A) a Shelf Registration is filed pursuant to Section 3 hereof, (B) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act and, by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period or (C) reasonably requested in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and writing by the managing underwriter or underwriters, if any, or the Holders of a majority in aggregate principal amount of the Registrable Notes being sold in connection with an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
underwritten offering, (vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(viii) promptly incorporate in a Prospectus supplement or post-effective amendment such information or revisions to information therein relating to such underwriters or selling Holders as the managing underwriters, if any, and the or such Holders may or any of their respective counsel reasonably request in writing to be included or made therein in order to permit the intended method of distribution of the Registrable Securities; and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;.
(viiih) furnish Prior to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder any public offering of Registrable Notes or underwriter may reasonably request any delivery of a Prospectus contained in the applicable Exchange Registration Statement and by any amendment or postParticipating Broker-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver Dealer who seeks to each selling Holder and each underwriter, if any, without charge, as many copies of sell Exchange Notes during the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveApplicable Period, use its commercially reasonable best efforts to register or qualify, and to cooperate with the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, 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 Notes or Exchange Notes, as the case may be, for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, the Participating Broker-Dealer or any managing underwriter or underwriters, if any, reasonably request in writing; provided, that where Exchange Notes held by Participating Broker-Dealers or Registrable Notes are offered other than through an underwritten offering, the Company and their respective counseleach Guarantor agrees to cause its counsel to perform Blue Sky investigations and file any registrations and qualifications required to be filed pursuant to this Section 5(h) hereof, in connection with the keep each such registration or qualification of (or exemption therefrom) effective during the period such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of Exchange Notes held by Participating Broker-Dealers or the Registrable Securities Notes covered by the applicable Registration Statement; provided that neither the Company will not 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 taxation or 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;.
(xii) If (A) a Shelf Registration is filed pursuant to Section 3 hereof or (B) a Prospectus contained in connection with an Exchange Registration Statement filed pursuant to Section 2 hereof is requested to be delivered under the Securities Act by any sale of Registrable Securities that will result in such securities no longer being Registrable SecuritiesParticipating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, cooperate with each the selling Holder Holders of Registrable 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 Securities Act legends; legends and to register 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 such selling Holder the managing underwriter or the underwriter(s)underwriters, if any, or Holders may request at least two Business Days prior to such sale of Registrable Securities; 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;reasonably request.
(xiij) 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 Use commercially 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 underwriter or underwritersunderwriter, if any, to consummate the disposition of such Registrable Securities;
(xiii) not later than the effective date Notes, except as may be required solely as a consequence of the applicable Registration Statementnature of such selling Holder’s business, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities in which are in a form eligible for deposit with The Depository Trust Company; provided that case the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xiv) 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 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 shall (and the independent certified public accountants shall cause each Guarantor to) cooperate in all reasonable respects 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times Statement and for reasonable periods for inspection by the parties referred granting of such approvals; provided that neither the Company nor any existing Guarantor shall be required to in (A) through qualify generally to do business in any jurisdiction where it is not then so qualified, (EB) above, all pertinent financial and other records, pertinent corporate documents and properties take any action that would subject it to general service of the Company that are available process in any jurisdiction where it is not then so subject or (C) subject itself to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by taxation in any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 jurisdiction where it 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesnot then so subject.
(bk) As If (1) a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Shelf Registration is being effected filed pursuant to furnish Section 3 hereof, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Company such information regarding Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during 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 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 this Agreement.
(c) Each Holder agrees, thatApplicable Period, upon receipt of any written notice from the Company of the occurrence of any event contemplated by paragraph 5(e)(v) or 5(e)(vi) hereof, as promptly as practicable, prepare and file with the SEC, at the expense of the kind described in Section 2.04(a)(v)Company and the Guarantors, a supplement or 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 file any other required document so that, as thereafter delivered to the purchasers of the Registrable Notes being sold thereunder or to the purchasers of the Exchange Notes to whom such Prospectus will be delivered by a Participating Broker-Dealer, such Holder Prospectus will forthwith discontinue disposition not contain an untrue statement of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented a material fact or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thomit
Appears in 2 contracts
Sources: Registration Rights Agreement (CNL Lifestyle Properties Inc), Purchase Agreement (CNL Lifestyle Properties Inc)
Registration Procedures. (a) In connection with the Registration and/or sale registration of the Registrable Securities Interest pursuant to this Agreement, through an Underwritten Offering Section 3 or otherwise4 hereof, the Company shall use reasonable best efforts effect such registration to effect or cause the Registration and permit the sale of such the Registrable Securities Interest in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Company shall:
(ia) prepare Prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC on or prior to the Demand Registration Date or Shelf Filing Date, as applicable, a Registration Statement as prescribed by Section 2, 3 or Prospectus4, and use its best efforts to cause such Registration Statement to become effective and remain effective as provided herein, provided that, as far in advance as practical before filing any Registration Statement or Prospectus or any amendments or supplements thereto, (A) the Company shall furnish to and afford AcquisitionCo, one special counsel for AcquisitionCo (“AcquisitionCo Counsel”) and the managing underwriters, if any, and a reasonable opportunity to the Holders participating in such Registration, review copies of all such documents prepared (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed. AcquisitionCo or AcquisitionCo Counsel shall have the opportunity to 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 Prospectus or any amendments or supplements thereto in respect of which documents will AcquisitionCo must be subject afforded an opportunity to review prior to the review filing of such underwriters 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 such participating Holders regulations promulgated thereunder or the SEC, the applicable registration form or the SEC, the insertion therein of language, in form and their respective counselsubstance satisfactory to AcquisitionCo, and (B) consider in good faith any comments to the effect that the holding by AcquisitionCo of the underwriters Registrable Interest does not necessarily make AcquisitionCo a “controlling person” of the Company within the meaning of the Securities Act and Holders is not to be construed as a recommendation by AcquisitionCo of the investment quality of the Registrable Interest covered thereby and their respective counsel on that such documents;
holding does not imply that AcquisitionCo will assist in meeting any future financial requirements of the Company, or (ii) prepare 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 and file with the SEC such amendments and supplements post-effective amendments to such each Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the Shelf 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 accordance with force) under the terms of this Agreement Securities Act; and to 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 of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to Registrable Interest covered by such Registration Statement and the as so amended or in such Prospectus as so supplemented. The Company shall be deemed not to have used in connection therewith as may be necessary its best efforts to keep such a Registration Statement effective and during the Applicable Period if it voluntarily takes any action that would result in AcquisitionCo not being able to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a sell such Registrable Interest during that period ending on the 3rd anniversary after the effective date of unless such Registration Statement;action is required by applicable law.
(ivc) notify the participating Holders Notify AcquisitionCo, AcquisitionCo Counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two Business Days), and (if requested) confirm such advice notice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus same has become effective (including in such notice a written statement that AcquisitionCo may, upon request, obtain, without charge, one conformed copy of such Registration Statement or any post-effective amendment including financial statements and schedules, documents incorporated or supplement deemed to such Prospectus has been filedbe incorporated by reference and exhibits), (B) of any written comments by the SEC initiation of a proceeding with respect to, or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or of any order preventing or suspending the use of of, any preliminary or final Prospectus prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (DC) if, if at any time, 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 applicable agreement (including any underwriting agreement agreement) contemplated by Section 6(n) hereof cease to be true and correct in all material respectscorrect, and (ED) 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 offering offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose;
, (vE) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which the applicable Registration Statement or the Prospectus included any information becoming known that makes any statement made in such Registration Statement (as then or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in effect) contains any material respect or 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 omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (not misleading, and that in the case of such Prospectus and the Prospectus, it will not contain any preliminary Prospectusuntrue 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) not misleading or, if for of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any other reason it shall be necessary during such time period to amend or supplement such 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 Interest for sale in order to comply with the Securities Act any jurisdiction, and, in either case as promptly as reasonably practicable thereafterif any such order is issued, prepare and file with to use its best efforts to obtain the SEC, and furnish without charge to withdrawal of any such order at the selling Holder and earliest possible moment.
(e) If requested by 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;
AcquisitionCo, (vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(viii) promptly incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may AcquisitionCo or AcquisitionCo Counsel reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and therein, (ii) make all required filings of such Prospectus prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified 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.
(viiif) furnish Furnish to each selling Holder AcquisitionCo, AcquisitionCo Counsel and each managing underwriter, if any, without charge, as many such number of conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or 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.
(ixg) deliver Deliver to each selling Holder AcquisitionCo, AcquisitionCo Counsel and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus or Prospectuses (including each form of preliminary Prospectusprospectus) 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 Holder or underwriter Persons may reasonably request (it being understood that request, and, subject to the last paragraph of this Section 6, the Company hereby consents to the use of such Prospectus or any and each amendment or supplement thereto by each selling Holder of 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 such Prospectus or and 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;.
(xh) on or prior Prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Interest, to use its reasonable best efforts to register or qualify, and to cooperate with each selling HolderAcquisitionCo, the managing underwriter or underwriters, if any, and their respective counsel, 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 each state and other jurisdiction of such jurisdictions within the United States as any selling Holder AcquisitionCo or the managing underwriter or underwriters, if any, or their respective counsel underwriters reasonably 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 keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 taxation or 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.
(xii) in connection Cooperate with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder AcquisitionCo and the managing underwriter or 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 Securities Act legendslegends and shall be in a form eligible for deposit with The Depository Trust Company; and to register enable such Registrable Securities Interest to be in such denominations and registered in such names as such selling Holder or the underwriter(s)managing underwriters, if any, or AcquisitionCo may request at least two Business Days prior to such sale of Registrable Securities; 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;reasonably request.
(xiij) 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 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 underwriter or 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.
(xiiik) not later than Upon the effective date occurrence of any event contemplated by clauses (E) or (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 applicable Company, a supplement or 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 file any other required document so that, as thereafter delivered to the purchasers of the Registrable Interest being sold thereunder, any 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 light of the circumstances under which they were made, not misleading.
(l) In the event of an Underwritten Registration or Underwritten Offering of the Registrable Interest (except that the “cold comfort” letters described in (iii) below shall be required whether such offering is underwritten or not), enter into an underwriting agreement as is customary in underwritten offerings of securities similar to the Registrable Interest and take all such other actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Interest, and in such connection, (i) make such representations and warranties to the underwriters, with respect to the business of the Company and its subsidiaries and the Registration Statement, provide a CUSIP number for all Registrable Securities Prospectus and provide the applicable transfer agent with printed certificates for documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by an issuer to underwriters in underwritten offerings of securities similar to the Registrable Securities which are in a form eligible for deposit with The Depository Trust CompanyInterest, and confirm the same if and when requested; provided that (ii) obtain opinions of counsel to the Company may satisfy its obligations hereunder without issuing physical stock certificates through and updates thereof in form and substance reasonably satisfactory to the use of The Depository Trust Company’s Direct Registration System;
(xiv) in the case of an Underwritten Offeringmanaging underwriters, obtain for delivery to and addressed to the selling Holders underwriters covering the matters customarily covered in opinions requested in underwritten offerings and the underwriter or such other matters as may be reasonably requested by underwriters, an opinion from the Company’s outside counsel ; (iii) obtain “cold comfort” letters and updates thereof 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 addressed substance reasonably satisfactory to the underwriter or managing 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 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 any acquired company financial statements) be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and content for covering matters of the type of Underwritten Offering, including with comfort customarily covered in “cold comfort” letters customarily delivered in connection with quarterly period financial statements underwritten offerings and such other matters as reasonably requested by the underwriters; and (iv) if applicablean underwriting agreement is entered into, dated the date of execution of same shall contain customary indemnification provisions and procedures, in any event, no less favorable than those set forth in Section 7 hereof (or such other provisions and procedures acceptable to AcquisitionCo and the managing underwriters or agents) with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder. AcquisitionCo shall be a party to such underwriting agreement and brought down 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 closing obligations of such underwriters under such underwriting agreement be conditions precedent to the underwriting agreement;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.
(xvim) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally Make available to its security holdersfor inspection by AcquisitionCo, 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 underwriter participating in the Registration, (B) the underwriters (which term, for purposes any such disposition of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)Registrable Interest, if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder AcquisitionCo 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thsuch
Appears in 2 contracts
Sources: Registration Rights Agreement (NGA Holdco, LLC), Registration Rights Agreement (NGA Holdco, LLC)
Registration Procedures. (a) In connection with Whenever the Registration and/or sale of Offerors have requested that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall will use its reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company will expeditiously:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become and remain effective for a period of not less than three months; provided, that before filing a Registration Statement or Prospectus, prospectus or any amendments or supplements thereto, (A) the Company will furnish to the underwriters, if any, and to counsel selected by the Holders participating in Offerors requesting such Registration, Registration Statement copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and counsel before such participating Holders and their respective counselfiling is made, and (B) consider the Company will comply with any reasonable request made by such counsel to make changes to the extent such documents do not comply in good faith all material respects with the Securities Act or the securities laws of any comments of the underwriters and Holders and their respective counsel on such documentsother applicable jurisdiction;
(iib) prepare and file with the SEC such amendments (including post effective amendments) and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith therewith, which documents will be subject to the 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 such Registration Statement effective in accordance with the terms for a period of this Agreement not less than three (3) months and to comply with the provisions of the Securities Act and the securities laws of any other applicable jurisdiction with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and the Prospectus used during such period in connection therewith as may be necessary to keep such Registration Statement effective and to comply accordance with the provisions intended methods of disposition by the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of sellers thereof set forth in such Registration Statement;
(ivc) furnish to each Holder selling Registrable Securities such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such Registration Statement (including each preliminary prospectus) and 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, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to service of process except as required by the securities or blue sky laws in any such 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 accordance with the intended methods of disposition;
(f) notify the participating Holders and the managing underwriter or underwriterseach Holder selling Registrable Securities, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when prospectus or any prospectus supplement has been filed with the applicable SEC, and, with respect to such Registration Statement or any post-effective amendment thereto thereto, when the same has been filed or becomes effective, or when declared effective by the applicable Prospectus or any amendment or supplement to such Prospectus has been filedSEC, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus related prospectus, or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesor a similar purpose (and the Company shall use its reasonable best efforts to obtain the withdrawal of any such order as soon as practicable), (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for offering or sale in of any jurisdiction or the initiation or threatening of any proceeding for such purpose;
purpose (v) promptly notify each selling Holder and the managing underwriter or underwritersCompany shall use its reasonable best efforts to obtain the withdrawal of any such suspension as soon as practicable), if any, when the Company becomes aware (E) of the occurrence of any event as a result that requires the making of which the applicable any changes to such Registration Statement or the Prospectus included in related prospectus so that such Registration Statement (as then in effect) contains documents will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectusstatement therein, in light of the circumstances under which they were made) , not misleading or(and the Company shall, if for any other reason it promptly prepare and furnish to each Holder selling Registrable Securities a reasonable number of copies of a supplemented or 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 or necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with make the Securities Act andstatements therein, in either case as promptly as reasonably practicable thereafterlight of the circumstances under which they are made, prepare and file with the SECnot misleading), and furnish without charge to (F) of the selling Holder and Company’s determination that the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal filing of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment to such information as the managing underwriters, if any, and the Holders may reasonably request to registration statement shall be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement necessary 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 amendmentappropriate;
(viiig) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holdersSEC, 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 Statementsame may hereafter be amended;
(xviih) use its reasonable best efforts to cause all such Registrable Securities covered by such Registration Statement to be listed or quoted on the principal securities exchange or national automated quotation system on which similar securities issued by the Company are then listed or quoted or, if not then listed or quoted, use its reasonable best efforts to cause such Registrable Securities to be listed on a national securities exchange or quoted on a national automated quotation system;
(i) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by the applicable such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xviiij) cooperate with each Holder selling Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold; and 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 registered in such names as such seller may reasonably request at least 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;
(m) 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 being sold or the underwriters, if any, 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 “road shows” and other informational meetings organized by the underwriters); and
(n) upon execution and delivery of such customary confidentiality agreements as the Company shall reasonably request, make available for inspection by any Holder selling Registrable Securities covered by the applicable such Registration Statement to be listed on each securities exchange on which Statement, 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 underwriter participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed any disposition pursuant to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agentRegistration Statement, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such seller or 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, directors, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, Statement; provided that the Company shall not be required to make any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix) shall agree to use reasonable efforts to protect records available in the confidentiality event doing so would constitute a violation 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesapplicable public securities law.
(bo) As The Company will make generally available to each Holder proposing to sell Registrable Securities, as soon as reasonably practicable, an earnings statement (which need not be audited) for the twelve months beginning after the effective date of a condition precedent to any Registration hereunderStatement 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 may require each Holder as shall not be required to which 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 is being effected to furnish Statement with the SEC pursuant to the Company such information regarding requirements of the distribution Securities Act, the Exchange Act, or the securities laws of any other jurisdiction, file all reports required to be filed by it under the Securities Act, the Exchange Act, and the securities laws of such securities other jurisdiction and the rules and regulations adopted by the SEC thereunder, and take such other information relating to such Holder, its ownership further action as any Holder or Holders of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each such Holder agrees to furnish such information request, all to the Company and to cooperate with the Company as reasonably necessary extent required to enable the Company such holders to comply with the provisions of this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of be eligible to sell Registrable Securities pursuant to such (i) Rule 144 of the Securities Act, or any similar rule or regulation hereafter adopted by the SEC, or (ii) a Registration Statement until such Holder’s receipt of the copies of the supplemented on Form S-3 or amended Prospectus contemplated by Section 2.04(a)(v)F-3, as applicable, or until such Holder is advised in writing any similar registration form hereafter adopted by the SEC. Upon request, the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to 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 names as the Holder may reasonably request in writing at least three (at 3) days prior to the Company’s expense) all copies, other thtransfer of such Registrable Securities.
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Xinyuan Real Estate Co LTD)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities Company's registration obligations pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 3 hereof, the Company shall use reasonable best efforts will effect such registrations to effect or cause the Registration and permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Company will as expeditiously as possible:
(ia) prepare Prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement on Form S-3 (or Prospectusany equivalent successor 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 cause each such Registration Statement to become effective and remain effective as provided herein; 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), (A) the Company will furnish to the underwriters, if any, holders of the Registrable Securities covered by such Registration Statement and to their counsel (the Holders participating in such Registration, "Special Counsel") copies of all such documents prepared proposed to be filed, which documents and will be subject provide such holders and the Special Counsel five days to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel 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 and the Special Counsel, shall reasonably object on a timely basis;
(iib) prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in accordance with Section 3; cause the terms of this Agreement 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 methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement as so amended or to such Prospectus as so supplemented;
(iiic) in Notify the case selling holders of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such Registration Statement Registrable Securities and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwritersSpecial Counsel, if anypromptly, and (if requestedrequested by any such person) confirm such advice notice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority federal or state governmental authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, (Ciii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (Div) if, if at any time, time the representations and warranties of the Company contained in any applicable agreement contemplated by Section 4(m) hereof (including any underwriting agreement agreement) cease to be true and correct in all material respectscorrect, and (Ev) 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 offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
, (vvi) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included makes any statement made in such Registration Statement (as then or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in effect) contains 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, it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (not misleading and, in the case of such Prospectus and the Prospectus, it will not contain any preliminary Prospectusuntrue 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) not misleading or, if for any other reason it shall be necessary during such time period of the Company's determination that a post-effective amendment to amend or supplement such a 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 compliancewould be appropriate;
(vid) use its Use every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of a Registration Statement, or the lifting of any preliminary suspension of the qualification (or final Prospectusexemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(viie) If requested by the holders of a majority of the Registrable Securities being registered, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to such holders agree should be included therein in order to permit the intended method of distribution of the Registrable Securities; as may be required by applicable law and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified 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;
(viiif) furnish Furnish to each selling Holder holder of Registrable Securities and each underwriter, if any, the Special Counsel without charge, as many at least one conformed copies as such Holder or underwriter may reasonably request copy of the applicable Registration Statement and any amendment or 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);
(ixg) deliver Deliver to each selling Holder holder of Registrable Securities and each underwriter, if any, the Special Counsel without charge, as many copies of the applicable Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter persons may reasonably request (it being understood that request; and the Company hereby consents to the use of such Prospectus or any each amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(xh) on or prior Prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, holders of Registrable 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” sky laws of each state and other jurisdiction of such jurisdictions within the United States as any selling Holder seller or managing underwriter reasonably requests in writing; keep each such registration or underwriters, if any, qualification (or their respective counsel reasonably request in writing 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 keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 taxation or general service of process in any such jurisdiction where in which it is not then so subject;
(xii) in connection Cooperate with any sale the selling holders 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 sold, which certificates will not bearing bear any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xiij) 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 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiik) not later than Upon the occurrence of any event contemplated by Section 4(c)(vi) or 4(c)(vii) hereof, prepare a supplement or post-effective date 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 so that, as thereafter delivered to the Investors of the applicable 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 light of the circumstances under which they were made, not misleading;
(l) Use its best efforts to cause all Registrable Securities covered by such Registration Statement to be listed on the NASDAQ Small Cap National Market or any other securities exchange, if any, on which similar securities issued by the Company are then listed;
(m) Enter into such agreements 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, (i) make such representations and warranties to the holders of such Registrable Securities, if any, with respect to the business of the Company and its subsidiaries, the Registration Statement, provide 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 holders of a CUSIP number for all majority of the Registrable Securities being sold) addressed to such selling holders of Registrable Securities and provide each of the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter or underwriters, an opinion 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; (iii) use its best efforts to obtain "comfort" letters and updates thereof 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 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 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 any acquired company financial statements) be, included in the Registration Statement), addressed to each selling holder of Registrable Securities, such letters to be in customary form and content for covering matters of the type of Underwritten Offering, including with comfort customarily covered in "comfort" letters customarily delivered in connection with quarterly period financial statements if applicable, dated underwritten offerings; and (iv) deliver such documents and certificates as may be requested by the date holders of execution a majority of the Registrable Securities being sold and the 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 any customary conditions contained in the underwriting agreement or similar agreement entered into by the Company. The foregoing actions will be taken in connection with each closing under such agreement as and brought down to the closing under the underwriting agreementextent required thereunder;
(xvin) use Make available for inspection by a representative of the holders of Registrable Securities being sold, and Special Counsel or any accountant retained by such selling holders, all financial and other records, pertinent corporate documents and properties of the Company and its reasonable best efforts subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to comply supply all information reasonably requested by any such representative, attorney or accountant in connection with such Registration Statement; 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 will be kept confidential by such 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 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);
(o) 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 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 rules and regulations promulgated thereunder and covering Securities Act) no later than 45 calendar days after the end of any 12-month period (or 90 calendar days after the end of at least 12 months, but not more than 18 months, beginning with any 12-month period if such period is a fiscal year) commencing on the first month day of the first fiscal quarter of the Company, 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 noncover said 12-confidential basis from a source other than the Company or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the month period. The Company may require each Holder seller of Registrable Securities 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 may, from time to time time, reasonably request in writing. Each writing and the Company may exclude from such Holder agrees 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 will be deemed to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions have agreed by virtue of this Agreement.
(c) Each Holder agrees, its acquisition of such Registrable Securities that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v4(c)(ii), 4(c)(iii), 4(c)(v), 4(c)(vi) or 4(c)(vii) hereof, such Holder holder will forthwith discontinue disposition of such Registrable Securities pursuant to covered by such Registration Statement or Prospectus until such Holder’s holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v)4(k) hereof, or until such Holder it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and if so directed has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus. In the event the Company shall give any such notice, the time period prescribed in Section 3(a) hereof will be extended by the Company, number of days during the time period from and including the date of the giving of such Holder will deliver notice to and including the Company date when each seller of Registrable Securities covered by such Registration Statement shall have received (at x) the Company’s expensecopies of the supplemented or amended Prospectus contemplated by Section 4(k) all copies, other thhereof or (y) the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Frisby Technologies Inc), Registration Rights Agreement (Frisby Technologies Inc)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale Company is required to effect the registration of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use its reasonable best efforts to effect or cause and facilitate the Registration registration, offering and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andas promptly as is practicable, and the Company shall as expeditiously as possible:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the 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 Prospectuswith respect to such Registrable Securities, make all required filings required (including Financial Industry Regulatory Authority filings) in connection therewith and thereafter and (if the 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 any amendments or supplements theretothereto (including free writing prospectuses under Rule 433), (A) the Company will furnish to the underwriters, if any, and to the Holders participating in for such Registration, registration copies of all such documents prepared proposed to be filedfiled (including exhibits thereto), which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider such other documents reasonably requested by such counsel, including any comment letter from the SEC, and give the Holders participating in good faith any comments 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 is reasonably unable to comply with, then the Company may defer the filing of the underwriters and Holders and their respective counsel on Registration Statement that is required to effect the applicable registration for a reasonable period of time to compile such documentsinformation;
(ii) prepare and file with the SEC such amendments and supplements to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep 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 accordance the case 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 terms maximum period of this Agreement time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period ending when all of the Registrable Securities covered by such Registration Statement have been disposed of (but in any event not before the expiration of any longer period required under the Securities Act) and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all 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 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 Registrable Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of covered by such Registration Statement;
(iviii) notify the participating Holders furnish to each Selling Holder and the managing underwriter or underwritersunderwriters such number of copies, if anywithout charge, of any Registration Statement, each amendment and (if requested) confirm supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such advice other documents as such persons may reasonably request from time to time in writing and provide copies order to facilitate the disposition of the relevant documentsRegistrable Securities owned by such Selling Holder; provided that, as soon as reasonably practicable after notice thereof is received by before amending or supplementing any Registration Statement, the Company (A) when shall furnish to the applicable Registration Statement Holders a copy of each such proposed amendment or supplement and not file any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any such proposed amendment or supplement to such Prospectus has been filed, (B) of which any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Selling Holder reasonably objects. The Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company hereby consents to the use of such Prospectus or any prospectus and each amendment or supplement thereto by each selling Holder 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 Prospectus or prospectus and any such 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;
(xiv) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualifyqualify any Registrable Securities under such other securities or blue sky laws of such jurisdictions as any Selling Holder, and cooperate with each selling Holder, the managing underwriter or underwriters, if anyany reasonably request, and their respective counsel, in connection with the use its reasonable best efforts to keep each such registration or qualification of (or exemption therefrom) effective during the period such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing Registration Statement is required to be kept effective and do any and all other acts or and things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of sales and dealings in such jurisdictions of the United States for so long as that may be necessary or reasonably advisable to complete enable such Selling Holder and each underwriter, if any, to consummate the distribution disposition of the seller’s Registrable Securities covered by the Registration Statementin such jurisdictions; 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 (iii) consent 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;
subject (xi) other than service of process in connection with such registration or qualification or any sale of Registrable Securities that will in connection therewith);
(v) 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 securities no longer being 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 each selling Holder the Holders and the any managing underwriter or underwriters, if any, underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold sold, and not bearing any restrictive Securities Act legends; and to register enable certificates for such Registrable Securities to be issued for such number of shares and registered in such denominations and such names as such selling Holder or the Holders and any managing underwriter(s), if any, ) may request at least two Business Days prior to such sale of Registrable Securities; 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 Systemreasonably request;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviiiviii) cause all such Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of similar securities issued by the Company’s Common Stock Company are then listed or quoted and on each inter-dealer quotation system on which any of or, if no similar securities issued by the Company’s Common Stock Company are then quotedlisted on any securities exchange, including the filing of any required supplemental listing application;
(xix) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed use its reasonable best efforts to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the cause all such Registrable Securities to be Registeredlisted 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, (Ciii) 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 sale removal of any such stop order, injunction or placement agent therefor, if anyother order or requirement or proceeding or the lifting of any such suspension, (Dv) counsel 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 underwriters or agentpurpose;
(x) make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to the applicable Registration Statement and (E) any attorney, accountant or other agent or representative retained by any such Selling 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, underwriter all pertinent financial and other records, pertinent corporate documents and properties documents relating to the business of the Company that are available to the Companyreasonably requested by such Selling Holder, and cause the Company’s officers, directors, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person Selling Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their and make senior management of the Company available for customary due diligence responsibility, subject to the foregoing, and drafting activity; provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix3(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 person is notified, unless (xA) the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (yB) 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, (FD) such information is or becomes available to such Person person on a non-confidential basis from a source other than the Company or (zE) such information is independently developed by such Personperson. 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 Company, assist the Company in seeking to prevent or limit the proposed disclosure;
(xxxi) in the case of an underwritten offering, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters or any Selling Holder reasonably requests to cause be included therein, the executive officers 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 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) and take all such other actions as the Selling Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(xiv) in the case of an underwritten offering, make senior management of the Company available to participate assist to the extent reasonably requested by the managing underwriters of any Underwritten Offering to be made pursuant to such registration in the customary marketing of the Registrable Securities to be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations that may and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be reasonably requested by sold in the managing underwriter or underwriters in any Underwritten Offering Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Stock
(xxixv) take use reasonable best efforts to: (a) obtain all other customary steps reasonably necessary consents of independent public accountants required to effect be included in the Registration, Registration Statement and (b) in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the underwriters and to the Selling Holders, dated the date of the underwriting agreement for such offering and the date of each 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 as the underwriters 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), addressed to the underwriters, dated as of the date of such closing, with respect to the Registration Statement, each 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;
(b) As a condition precedent to any Registration hereunder, the obligations of the Company may require to file any registration statement covering Registrable Securities, each Holder of Registrable Securities as to which any Registration 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 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 such Holder agrees to furnish such information to by acquisition of the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
Registrable Securities that (ci) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v3(a)(v), such Holder will shall forthwith discontinue its disposition of Registrable Securities pursuant to the registration statement relating to such Registration Statement Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 2.04(a)(v3(a)(v), or until such Holder is advised in writing by ; (ii) upon receipt of any notice from the Company that the use of the Prospectus may be resumed, and if so directed by happening of any event of the Companykind described in clause (A) of Section 3(a)(ix), such Holder will deliver 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 (at B) of Section 3(a)(xi), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the Companyapplicable state jurisdiction(s) until such Holder’s expensereceipt 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 copies, other thRegistrable 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. (a) In connection At such time as the Company is obligated to file a Registration Statement with the Registration and/or sale of Registrable Securities Commission pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 2, the Company shall will use reasonable best efforts to effect or cause the Registration and registration of the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof and, pursuant thereto, the Company 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 earlier of (i) prepare and file the required date as of which the Common Stock covered by such Registration Statement, including all exhibits and financial statements required under the Securities Act Statement cease to be filed therewith, and before filing with Registrable Securities or (ii) the SEC a date on which each Purchaser shall have sold all of the Registrable Securities covered by such Registration Statement or Prospectus, or (the “Registration Period”). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto, (Athereto and Prospectuses contained therein) furnish shall not contain any untrue statement of a material fact or omit to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared state a material fact required to be filedstated therein, which documents will be subject or necessary to make the review statements therein (in the case of such underwriters and such participating Holders and their respective counselProspectuses, and (B) consider in good faith any comments the light of the underwriters and Holders and their respective counsel on such documents;circumstances in which they were made) not misleading.
(ii) b. The Company shall prepare and file with the SEC Commission such amendments and supplements to such a Registration Statement and the Prospectus used in connection therewith with such Registration Statement, which Prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective in accordance with at all times during the terms of this Agreement and to Registration Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Shares Registered thereon;
(iii) Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of a Shelf Registration, prepare and file with the SEC such 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 used included in connection therewith 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 keep 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 Statement effective Period, and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify take all other actions reasonably necessary or advisable to qualify the participating Holders and the managing underwriter or underwritersRegistrable Securities for sale in such jurisdictions; provided, if anyhowever, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by that the Company shall not be required in connection therewith or as a condition thereto to (Ax) when the applicable Registration Statement or qualify to do business in any amendment thereto has been filed or becomes effectivejurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or when the applicable Prospectus or any amendment or supplement (z) file a general consent to such Prospectus has been filed, (B) service of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company process in any applicable underwriting agreement cease to be true such jurisdiction. The Company shall promptly notify Legal Counsel and correct in all material respects, and (E) 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 offering sale under the securities or sale in “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;.
(v) f. The Company shall notify Legal Counsel and Purchasers in writing of the happening of any event, as promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes as practicable after becoming aware of the occurrence of any event such event, as a result of which the applicable Registration Statement or the Prospectus included in such a Registration Statement (Statement, as then in effect) contains any , includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) , not misleading or(provided that in no event shall such notice contain any material, 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 nonpublic information), and, in either case as subject to Section 3(l), promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter a supplement or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will to correct such untrue statement or omission omission, and deliver ten (10) copies of such supplement or effect amendment to Legal Counsel and Purchasers (or such compliance;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.
(vi) g. The Company shall use its commercially reasonable best efforts to prevent or obtain the withdrawal issuance of any stop order or other order suspending suspension of effectiveness of a Registration Statement, or the use suspension of the qualification of any preliminary of the Registrable Securities for sale in any jurisdiction and, if such an order or final Prospectus;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 threat of any proceeding for such purpose.
h. The Company shall hold in confidence and not make any disclosure of information concerning the Purchasers provided to the Company unless (viii) promptly 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 a Purchaser is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Purchaser and allow such Purchaser, at the Purchaser’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 Company shall (i) as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may Purchaser reasonably request requests to be included therein in order relating to permit the intended method sale and distribution of distribution Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable SecuritiesSecurities 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 reasonably practicable 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.
(viii) furnish j. Notwithstanding anything to each selling Holder and each underwriterthe contrary herein, if anyat any time after the Effective Date, without chargethe Company may delay the disclosure of material, as many conformed copies as such Holder or underwriter may reasonably request non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion 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);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies Board of Directors of the applicable Prospectus Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood a “Grace Period”); provided, that the Company consents shall promptly (i) notify the Purchasers 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 use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoPurchasers) 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualifyGrace Period will begin, and cooperate with each selling Holder(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 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 managing underwriter or underwriters, if any, Grace Period shall begin on and their respective counsel, include the date the Purchasers receive the notice referred to in connection with clause (i) and shall end on and include the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction later of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request date the Purchasers receive the notice referred to in writing clause (ii) and do any and all other acts or things reasonably necessary or advisable the date referred to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of sales and dealings in such jurisdictions notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Grace Period. Upon expiration of the United States for so long as may Grace Period, the Company shall again be necessary to complete the distribution of the Registrable Securities covered bound by the Registration Statement; provided that 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 will not be required shall cause its transfer agent to qualify generally deliver unlegended shares of Common Stock 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 a transferee of process in any such jurisdiction where it is not then so subject;
(xi) a Purchaser in connection with any sale of Registrable Securities that will result in with respect to which such securities no longer being Registrable SecuritiesPurchaser has entered into a contract for sale, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if any, on which any delivered a copy of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any Prospectus included as part 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 (unless an exemption from 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) in the case of an Underwritten Offering, obtain for prospectus 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Actrequirements exists), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such HolderPurchaser’s receipt of the copies notice of a Grace Period and for which the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thPurchaser has not yet settled.
Appears in 2 contracts
Sources: Investor Rights Agreement (Giga Tronics Inc), Securities Purchase Agreement (Giga Tronics Inc)
Registration Procedures. (a) In connection with the Registration and/or sale to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this AgreementAgreement or have initiated a takedown offering, through an Underwritten Offering or otherwise, the Company Pubco shall use its reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto Pubco shall as expeditiously as reasonably possible:
(ia) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the required Commission a Registration Statement, including and all exhibits amendments and financial statements required under the supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities Act and use its reasonable best efforts to be filed therewith, and cause such Registration Statement to become effective (provided that at least two (2) Business Days before filing with the SEC a Registration Statement or Prospectus, prospectus or any amendments or supplements thereto, (A) Pubco shall furnish to counsel selected by the underwriters, if any, and to the Holders participating in such Registration, Applicable Approving Party copies of all such documents prepared proposed to be filed, which documents will shall be subject to the review and comment of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith no such document shall be filed with the Commission to which any comments of the underwriters and Holders and their respective Investor or its counsel on such documentsreasonably objects);
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivb) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies each holder of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company Registrable Securities of (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such any Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (DB) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company Pubco or its counsel 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, and (C) the effectiveness of each Registration Statement filed hereunder;
(vc) promptly notify each selling Holder prepare and file with the Commission such amendments and supplements to such Registration Statement and the managing 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 underwriters, if any, when dealer) and comply with the Company becomes aware provisions of the occurrence Securities Act with respect to the disposition of any event as a result of which the applicable all securities covered by such Registration Statement or during such period in accordance with the Prospectus 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 (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such prospectus), each Free-Writing Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(xe) on 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 prior to 15(d) of the date on which the applicable Registration Statement is declared effective or becomes effective, Securities Act;
(f) use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” sky laws of each state and other jurisdiction of such jurisdictions as the United States as any selling Holder or managing lead underwriter or underwriters, if any, or their respective counsel the Applicable Approving Party reasonably request in writing requests and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 taxation or general service of process in any such jurisdiction where it is not then so subjector (iii) subject itself to taxation in any such jurisdiction);
(xig) promptly notify in connection with any sale writing each seller of such Registrable Securities that will (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 the prospectus included in such securities no longer being 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, Pubco 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, cooperate with each selling Holder and such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing statements therein not misleading;
(h) cause all such Registrable Securities to be sold and listed on each securities exchange on which similar securities issued by Pubco are then listed and, if similar securities are not bearing any restrictive Securities Act legends; and 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 in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemwith FINRA;
(xiii) cooperate and assist in any filings if applicable, promptly effect a filing with FINRA pursuant to FINRA Rule 5110 (or successor thereto) with respect to the public offering contemplated by resales of securities under the Resale Shelf Registration Statement (an “Issuer Filing”), pay the filing fee 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, Issuer Filing and use its reasonable best efforts to pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Resale Shelf Registration Statement.
(j) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(k) enter into and perform such customary agreements (including underwriting agreements in customary form) 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 limitation, 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 the underwriters managing such 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 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 qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, use its reasonable best efforts promptly to obtain the withdrawal of such order;
(q) use its reasonable best efforts to cause 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiir) cooperate with the holders of Registrable Securities covered by the Registration Statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not later than 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;
(s) cooperate with each holder of Registrable Securities covered by the Registration Statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(t) if such registration includes an underwritten public offering, use its reasonable best efforts to obtain a cold comfort letter from Pubco’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(u) provide a legal opinion of Pubco’s outside counsel, dated the effective date of the applicable such Registration StatementStatement (and, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) in the case of if such registration includes 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 underwritten Public Offering, dated the date of the closing under the underwriting agreement;
(xv) in the case of an Underwritten Offering), obtain for delivery to and 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 statementsthe 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 content for covering such matters of the type customarily covered by legal opinions of Underwritten Offeringsuch nature, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down which opinion shall be addressed to the closing under the underwriting agreementunderwriters;
(xviv) 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 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 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 (ii) crediting of the Registrable Securities 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, may reasonably request; and
(z) 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 Common Stock; (c) ensure that the transfer agent for the Common Stock is a participant in, and 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 comply with all applicable rules and regulations of cause 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 to not at any time be subject to any DTC “chill,” “freeze” or quoted and on each inter-dealer quotation system on which similar restriction with respect to any of the Company’s Common Stock are then quotedDTC services, including the filing clearing of any required supplemental listing application;
(xix) provide (A) each Holder participating shares of Common Stock through DTC, and, in the Registrationevent the Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed use its reasonable best efforts to cause any such “chill,” “freeze” or similar restriction to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (removed at the Company’s expense) all copies, other thearliest possible time.
Appears in 2 contracts
Sources: Registration Rights Agreement (Oncology Institute, Inc.), Merger Agreement (DFP Healthcare Acquisitions Corp.)
Registration Procedures. In connection with its obligations under this Article II, the Company (or the applicable Selling Holder in the case of Section 2.3(q)), will, as soon as is reasonably practicable (or otherwise within the applicable timeframe, if any, specified in this Agreement):
(a) In connection prepare and file with the SEC, and use commercially reasonable efforts to cause to be declared or become effective, the Shelf Registration and/or sale of Statement and each other registration statement contemplated by this Agreement with respect to all Registrable Securities as provided herein, 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, through an Underwritten Offering ; upon the occurrence of any event that would cause the Shelf Registration Statement or otherwisesuch other registration statement or the prospectus contained therein to contain a material misstatement or omission, the Company shall use reasonable best efforts file an appropriate amendment to effect the Shelf Registration Statement or cause such other registration statement, a supplement to the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statementprospectus, including all exhibits and financial statements required under the Securities Act to be or a report filed therewith, and before filing with the SEC a pursuant to Section 13(a), 14 or 15(d) of the Exchange Act, correcting any such misstatement or omission, and the Company shall use commercially reasonable efforts to cause such amendment to be declared or become effective and the Shelf Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders other registration statement and the related prospectus to become usable for their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsintended purposes as soon as practicable thereafter;
(iib) (i) prepare and file with the SEC such amendments and supplements to such the Shelf Registration Statement and such other registration statement and the Prospectus 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 such the Shelf Registration Statement effective in accordance with for the terms of this Agreement Effectiveness Period and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all of securities covered by 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 and the Prospectus such other registration statement; and (ii) if a prospectus supplement will be used in connection therewith as may with the marketing of an Underwritten Offering or 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 such Managing Underwriter, inclusion of detailed information to be necessary used in such prospectus supplement is of material importance to keep the success of the Underwritten Offering or Overnight Underwritten Offering of such Registration Statement effective 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 comply with a single counsel for the provisions Holders selected by the holders of the Securities Act with respect to the disposition a majority of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivRegistrable Securities) notify the participating Holders and the managing underwriter Managing Underwriter or underwritersunderwriters (and to their counsel), if any, and (if requested) confirm such advice in writing and provide a reasonable opportunity to review copies of the relevant documentsall 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), as soon as reasonably practicable after notice thereof is received by and the Company (A) when the applicable Registration Statement shall not file any such registration statement or prospectus or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company thereto in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement Holders have provided or must provide information for the Prospectus included in inclusion therein without such Registration Statement (as then in effect) contains any untrue statement Holders being afforded an opportunity to review such documentation if the holders of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale majority of the Registrable Securities covered by such Prospectus Registration Statement, or the Managing Underwriter or underwriters, if any, or 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, 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) and such number of copies of the Shelf Registration Statement or such other documents registration statement and the prospectus included therein and any supplements and amendments thereto as such selling Holder or underwriter Persons may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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 Shelf Registration Statement; Statement or such other registration statement;
(d) if applicable, use its commercially reasonable efforts to register or qualify the Registrable Securities 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 the Selling Holders or, in the case of an Underwritten Offering or Overnight Underwritten Offering, the Managing Underwriter, shall reasonably 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(xie) in connection with any sale promptly notify each Selling Holder and each underwriter 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 at any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 time when a prospectus relating thereto is required to be retained delivered under the Securities Act, of (i) 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 accordance 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 rules same has become effective; and regulations of each such exchange, (ii) any written comments from the SEC with respect to any filing referred to in clause (i) and use its reasonable best efforts to cause the Registrable Securities covered any written request by the applicable SEC for amendments or supplements to the Shelf Registration Statement to be registered with or approved any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement thereto (provided that in no event shall such other governmental agencies notice contain any material, non-public information regarding the Company or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition any of such Registrable Securitiesits subsidiaries);
(xiiif) 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 later than misleading, in the effective date light of the applicable circumstances then existing; (ii) the issuance or threat of issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration StatementStatement or any other registration statement contemplated by this Agreement, provide a CUSIP number or the initiation of any proceedings for all that purpose; or (iii) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities and provide for sale under the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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 may satisfy or any of its obligations hereunder without issuing physical stock certificates through subsidiaries); and following the use provision of The Depository Trust Company’s Direct Registration Systemsuch 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;
(xivg) furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) 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, obtain for delivery to furnish upon request and addressed to the selling Holders underwriters and to the underwriter or underwritersSelling Holders, (i) an opinion from of counsel for the Company’s outside counsel in customary form , dated the effective date of the applicable registration statement or the date of any amendment or supplement thereto, and content for the type a letter of Underwritten Offering, like kind dated the date of the closing under the underwriting agreement;
, and (xvii) in a “comfort letter,” dated the case effective date of an Underwritten Offering, obtain for delivery to the applicable registration statement or the date of any amendment or supplement thereto and 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 with quarterly period financial statements if applicable, like kind dated the date of execution of the underwriting agreement and brought down to 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 “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 applicable, independent reserve engineers’) letters delivered to the underwriters in Underwritten Offerings or Overnight Underwritten Offerings of securities, and such other matters as such underwriters or Selling Holders may reasonably request;
(xvii) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC 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 full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the Registration Statementprovisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(xviij) 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 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 to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Selling Holders to consummate the disposition of such Registrable Securities;
(m) 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 such registration statement not later than the effective date of such Registration Statementregistration statement;
(xviiin) enter into customary agreements and take such other actions 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 entry of such Registrable Securities in book-entry with The Depository Trust Company (including, making appropriate officers of the Company available to (i) prepare and make presentations at any “road shows” before analysts and other customary marketing activities, (ii) participate in one on one meetings with prospective purchasers of the Registrable Securities and (iii) cooperate as requested by the underwriters in the offering, marketing or selling of the Registrable Securities);
(o) cause all the Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of initially represented by direct registration with the Company’s Common Stock are then listed or quoted transfer agent and on each inter-dealer quotation system on which any of provide a CUSIP number for all Registrable Securities; and, in connection therewith, if reasonably required by the Company’s Common Stock are then quotedtransfer agent, including the filing Company shall promptly deliver any authorizations, certificates and directions 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 Registrable Securities under the Shelf Registration Statement or any required supplemental listing applicationother registration statement contemplated by this Agreement;
(xixp) provide (A) each if any Selling Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person could reasonably be deemed to be an underwriter within the meaning of “underwriter,” as defined in Section 2(112(a)(11) of the Securities Act), if any, in connection with the registration statement in respect of the any registration of Registrable Securities of such Selling Holder pursuant to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agentthis Agreement, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement theretothereof (any such registration statement or amendment or supplement, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such “Holder Underwriter Registration Statement”), make available upon reasonable notice at reasonable times and for reasonable periods for inspection by then, (i) until the parties referred to in (A) through (E) aboveEffectiveness Period ends, 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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection cooperate with such Registration Statement as shall be necessary Selling Holder in allowing such Selling Holder to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the conduct customary “road showunderwriter’s due diligence” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each such Holder agrees to furnish such information 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 cooperate with such Selling Holder, on the Company as reasonably necessary to enable date of the Company to comply with the provisions of this Agreement.
(c) Each Holder agrees, that, upon receipt effectiveness of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Underwriter Registration Statement until and thereafter no more often than on a quarterly basis when so requested, (A) a letter, dated such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v)date, or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at from the Company’s expenseindependent certified public accountants (and, if applicable, independent reserve engineers) all copiesin form and substance as is customarily given by independent certified public accountants (and, other thif applicable, independent reserve engineers) to underwriters in an underwritten public offering, addressed to such Selling Holder, (B) an opinion, dated as of such 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 such Selling Holder and (C) 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. (a) In connection with the Registration and/or sale of Registrable Securities Company's registration obligations pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 3 hereof, the Company shall will use reasonable its best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(ia) prepare and file with the required SEC, as soon as practicable, a Registration StatementStatement or Registration Statements on any appropriate form under the Securities Act, including 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 exhibits and financial statements required under by the Securities Act 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 with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) the Company will 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 prepared proposed to be filed, which documents will be subject to the reasonable review of such underwriters holders and such participating Holders and their respective counselunderwriters, and (B) consider in good faith the Company will not file any comments Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the underwriters and Holders and their respective counsel on Registrable Securities covered by such documentsRegistration Statement or the underwriters, if any, shall reasonably object;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such the 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 effective in accordance with have been sold; cause the terms of this Agreement 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 Shares Registered thereonRegistrable 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;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A1) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, (C3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D4) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (o) below cease to be true and correct in all material respectscorrect, and (E5) 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 and (v6) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which makes any statement made in the applicable Registration Statement or Statement, the Prospectus included or any document incorporated therein by reference untrue or which requires the making of any changes in such the Registration Statement (as then Statement, the Prospectus or any document incorporated therein by reference in effect) contains any untrue statement of a material fact or omits to state a material fact necessary order to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible moment;
(viie) 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, if any, underwriters and the Holders may reasonably request to holders of a majority of the Registrable Securities being sold agree should be included therein in order relating to permit the intended method 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 SecuritiesSecurities 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;
(viiif) furnish to each selling Holder holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy 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);
(ixg) deliver to each selling Holder holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use of such the Prospectus or any amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the 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;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, 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 each state and other jurisdiction of the United States such jurisdictions as any selling Holder seller or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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;
(xii) in connection cooperate with any sale the selling holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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;
(xiiik) 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 applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Depositary 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;
(xivn) 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 case Purchase Agreement; (2) obtain opinions of an Underwritten Offeringcounsel 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 for delivery to "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling Holders holders of Registrable Securities and the underwriter or underwriters, an opinion from the Company’s outside counsel if any, such letters to be in customary form and content for 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 Underwritten Offering, dated Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the date 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 underwriting agreementextent required thereunder;
(xvo) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in the case of an Underwritten Offeringany disposition pursuant to such registration, obtain for delivery to and addressed to the underwriter any attorney or underwriters and, to the extent agreed accountant retained by the Company’s independent certified public accountantssellers or underwriter, each selling Holderall financial and other records, a comfort letter from pertinent corporate documents and properties of the Company’s independent certified public accountants (, and cause the independent certified public accountants with respect Company's officers, directors and employees to supply all information reasonably requested by any acquired company financial statements) in customary form and content for the type of Underwritten Offeringsuch representative, including with comfort letters customarily delivered underwriter, attorney or accountant in connection with quarterly period financial statements if applicablesuch registration; PROVIDED that any records, dated information or documents that are designated by the date Company in writing as confidential shall be kept confidential by such Persons unless disclosure of execution of the underwriting agreement and brought down to the closing under the underwriting agreementsuch records, information or documents is required by court or administrative order;
(xvip) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC 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 statements satisfying the provisions of Section 11(a) of the Securities Act and Act, no later than 45 days after the rules and regulations promulgated thereunder and covering end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the period end of at least 12 monthsany fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, but or (2) if not more than 18 monthssold 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
(xviiq) 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period promptly prior to the filing of such 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 upon reasonable notice at reasonable times for discussion of such document and for reasonable periods for inspection by the parties referred to make such changes in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available such document prior to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and filing thereof as counsel for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter selling holders or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps may reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the request. The Company may require each Holder seller of Registrable Securities 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 of Registrable Securities agrees by acquisition of 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 this Agreement.
(c) Each Holder agrees, Registrable Securities that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v)6(k) hereof, 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 2.04(a)(v)6(k) hereof, or until such Holder 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 's expense) all copies, other ththan 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. (a) In 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 Registration and/or sale any distribution of Registrable Registered Securities pursuant to thereto as provided in this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts as promptly as reasonably practicable, subject to effect or cause the Registration and the sale other provisions of such Registrable Securities in accordance with the intended methods of disposition thereof andthis Agreement:
(i) use reasonable efforts to prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement to effect such registration in accordance with the intended method or Prospectusmethods of distribution of such securities and thereafter use reasonable efforts to cause such Registration Statement to become and remain effective pursuant to the terms of this Article V; 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 such registration statement or any amendments or supplements thereto, (A) the Company will furnish to the underwriters, if any, and to the Holders participating holders which are including Registrable Securities in such Registrationregistration (“Selling Holders”), copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and reasonable comment (B) consider which comments will be considered in good faith any comments by the Company) of the underwriters and Holders and their respective counsel on (if any) to such documentsholders;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary extent required by applicable law to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect Available pursuant to the disposition terms of all Shares subject thereto for a period ending 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 3rd anniversary after the effective date of such Registration StatementCompany are then listed;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xviiiv) cause all as promptly as practicable notify in writing the holders of 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 following events: (A) the filing of the Registration Statement, any required supplemental listing application;
(xix) provide (A) each Holder participating in amendment thereto, the Registrationprospectus or any prospectus supplement related thereto or post-effective amendment to such Registration Statement, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the underwriters (which term, SEC or any other U.S. or state governmental authority for purposes of this Agreement, shall include a Person deemed amendments or supplements to be an underwriter within such Registration Statement or the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, prospectus or for additional information; (C) the sale issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or placement agent therefor, if any, the initiation of any proceedings by any person for that purpose; (D) counsel the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such underwriters or agent, purpose; and (E) upon the happening of any attorney, accountant event that makes any statement made in such Registration Statement or other agent or representative retained by such Holder 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 underwriterregistration statement, as selected by such Holderprospectus or documents so that, the opportunity to participate in the preparation case of such Registration Statement, each Prospectus included it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or filed with necessary to make the SECstatements therein not misleading, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which 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;
(vi) use reasonable judgment efforts to obtain the withdrawal of such Holder(s) and their counsel should be included; and for a reasonable period prior to any order suspending the filing effectiveness of such Registration Statement, make available upon or the 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 reasonable notice at reasonable times and practicable date, except that the Company shall not for reasonable periods for inspection by the parties referred any such purpose be required to in (A) through 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 requirements of this clause (Eix) abovebe obligated to be so qualified, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available (B) subject itself to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by taxation in any such Person jurisdiction or (C) file a general consent to service of process in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such Person gaining access jurisdiction;
(vii) prior to information or personnel pursuant to this Section 2.04(a)(xix) shall agree to any public offering of Registrable Securities, use reasonable efforts to protect register or qualify or cooperate with the confidentiality 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” laws of those jurisdictions within the United States as any information regarding holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company which will not be 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 Company determines in good faith requirements of this clause (xi) be obligated 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 by a governmental entity, subpoena or similar processso qualified, (yB) subject itself to taxation in any 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 jurisdiction or (zC) such information is independently developed by such Person;
(xx) file a general consent to cause the executive officers service of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters process in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosuch jurisdiction; and
(xxiviii) take use reasonable efforts to cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be 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 applicable law, of all other customary steps reasonably necessary restrictive legends, and to effect enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the RegistrationCompany’s transfer agent, offering and sale 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 SecuritiesSecurities without legend upon sale by the holder of such shares of Registrable Securities under the Registration Statement.
(b) As a condition precedent to any Registration hereunder, the The Company may require each Selling Holder as and each underwriter, if any, to which any Registration is being effected to (i) furnish to the Company in writing such information regarding each Selling Holder or underwriter and 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 writing to complete or amend the information required by such Holder agrees Registration Statement and/or any other documents relating to furnish such information to registered offering, and (ii) execute and deliver, or cause the Company execution or delivery of, and to cooperate with perform under, or cause the Company as performance under, any agreements and instruments reasonably necessary to enable requested by the Company to comply with effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the provisions Company requests that the holders of Registrable Securities take any of the actions referred to in this AgreementSection 5.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Selling Holder agrees, that, agrees that upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in clauses (B), (C), (D) and (E) of Section 2.04(a)(v5.03(a)(v), such Selling Holder will shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to such 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 2.04(a)(v), or until such Selling Holder is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and if has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the events described in clauses (B), (C), (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 thearliest reasonably practicable moment.
Appears in 2 contracts
Sources: Purchase Agreement (2U, Inc.), Purchase Agreement (2U, Inc.)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 Stock Shares are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s Class A Common Stock Shares are then quoted, including the filing of any required supplemental listing application;
(xix) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, agrees that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thall
Appears in 2 contracts
Sources: Registration Rights Agreement (StoneCo Ltd.), Registration Rights Agreement (StoneCo Ltd.)
Registration Procedures. (a) In connection with Whenever the Registration and/or sale holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company Corporation shall use reasonable its best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Corporation shall as expeditiously as possible:
(i) A. prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish on a form for which the Corporation then qualifies which is satisfactory to the underwritersCorporation and the holders of a majority of the Registrable Securities being registered (unless the offering is made on an underwritten basis, if anyincluding on a best efforts underwriting basis, in which event the managing underwriter or underwriters shall determine the form to be used) 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 use its best efforts to the Holders participating in cause such Registration, copies of all documents prepared Registration Statement to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentscome effective;
(ii) B. prepare and file with the SEC such amendments and supplements post- effective amendments to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for a period of not less than six months, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement effective in accordance with have been sold or withdrawn; cause the terms of this Agreement 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 of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and during the Prospectus used applicable period in connection therewith as may be necessary to keep accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement effective and to comply with the provisions of the Securities Act with respect or supplement to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration StatementProspectus;
(iv) C. notify the participating Holders selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company writing,
(Ai) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (Cii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;.
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits D. make every reasonable effort to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible moment;
(vii) promptly E. if requested by the managing underwriters or a holder of Registrable Securities being sold, incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, underwriters and the Holders may reasonably request to be included therein in order to permit the intended method holders of distribution a majority of the Registrable SecuritiesSecurities being sold and their respective counsel reasonably conclude should be included in the Registration Statement, so that such Registration Statement conforms in both form and substance to the requirements of the Securities Act, including without limitation 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 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;
F. promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request after initial filing 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);
(ixStatement) deliver to each selling Holder and each underwriter, if any, without charge, as many provide copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents document to counsel to the use selling holders of such Prospectus or any amendment or supplement thereto by each selling Holder Registrable Securities and to the managing underwriters, if any, in connection and make the Corporation's representatives available for discussion of such document;
G. prior to any public offering of Registrable Securities, register or qualify or cooperate with the offering and sale selling holders of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling HolderSecurities, 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 each state and other jurisdiction of the United States such jurisdictions as any selling Holder seller or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 provided, however, that the Company will Corporation 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(xi) in connection H. cooperate with any sale the selling holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xii) cooperate and assist I. upon the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any filings 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, prepare a supplement or post-effective amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to be made with the FINRA and each securities exchange, if any, on which any purchasers of the Company’s securities are then listed Registrable Securities, the Prospectus shall not contain an untrue statement of a material fact or quoted and on each inter-dealer quotation system on which omit to state any of material fact necessary to make 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 statements therein not misleading;
J. cause the all Registrable Securities covered by the applicable Registration Statement to be registered with or approved listed on each securities exchange on which similar securities issued by the Corporation are then listed if requested by the holders of a majority of such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof Registrable Securities or the underwriter or managing underwriters, if any, to consummate the disposition of such ;
K. provide a transfer agent and registrar for all Registrable Securities and a CUSIP number for all Registrable Securities;
(xiii) , in each case not later than the effective date of such registration statement;
L. enter into such agreements (including an underwriting agreement satisfactory to the applicable Registration StatementCorporation, provide a CUSIP number for containing customary representations, warranties and agreements) and take all such other actions in connection therewith in order reasonably to expedite or facilitate the disposition of such Registrable Securities and provide in such connection, whether or not an underwriting agreement is entered into and whether or not the applicable transfer agent with printed certificates for registration is an underwritten registration:
(i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in such form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings;
(ii) obtain opinions of counsel to the Corporation 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 which are in a form eligible for deposit with The Depository Trust Company; provided that being sold) addressed to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters, if any;
(xiviii) in obtain "cold comfort" letters and updates thereof from the case of an Underwritten Offering, obtain for delivery to and Corporation's independent certified public accountants addressed to the selling Holders and the underwriter or underwriters, an opinion from the Company’s outside counsel if any, such letters to be in customary form and content for covering matters of the type customarily covered in "cold comfort" letters to underwriters in connection with primary underwritten offerings; and
(iv) deliver such documents and certificates as may be requested by the holders of Underwritten Offering, dated the date a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (i) of this Paragraph K and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The obligations under this Paragraph L above shall be performed at each closing under the such underwriting agreement;
(xv) in the case of an Underwritten Offering, obtain for delivery to or similar agreement or as and addressed to the underwriter or underwriters and, to the extent agreed required thereunder.
M. make available for inspection by a representative of the sellers of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Company’s independent certified public accountantssellers or underwriters, each selling Holderall financial and other records, a comfort letter from pertinent corporate documents of the Company’s independent certified public accountants (Corporation, and cause the independent certified public accountants with respect Corporation's officers, directors and employees to supply all information reasonably requested by any acquired company financial statements) in customary form and content such representative, underwriter, attorney, accountant or agent solely for the type of Underwritten Offering, including with comfort letters customarily delivered use in connection with quarterly period financial statements if applicablesuch registration statement; provided, dated however, that any records, information or documents that are designated by the date of execution of Corporation in writing as confidential shall be kept confidential by such Persons pursuant to such reasonable confidentiality agreements as the underwriting agreement and brought down to the closing under the underwriting agreementCorporation may request;
(xvi) N. otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC 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 statements satisfying the provisions of Section 11(a) of the Securities Act Act, no later than 45 days after the end of any twelve-month period (or 90 days, if such period is a fiscal year): (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in an underwritten offering, or, if not sold to underwriters in such an offering; and the rules and regulations promulgated thereunder and covering the period of at least 12 months, but not more than 18 months, (ii) beginning with the first month of the Corporation's first fiscal quarter commencing 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable shall cover said twelve-month periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Registration Rights Agreement (Electronic Retailing Systems International Inc), Registration Rights Agreement (Systems Holding Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of to be effected pursuant to the Resale Registration Statement, and whenever the Holder has requested that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use its commercially reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall as expeditiously as reasonably possible:
(ia) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the required Commission a Registration Statement, including and all exhibits amendments and financial statements required under the supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities Act and use commercially reasonable efforts to be filed therewith, and cause such Registration Statement to become effective (provided that at least five (5) Business Days before filing with the SEC a Registration Statement or Prospectus, prospectus or any amendments or supplements thereto, (A) the Company shall furnish to counsel selected by the underwriters, if any, and to the Holders participating in such Registration, Holder copies of all such documents prepared proposed to be filed, which documents will shall be subject to the review and comment of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents);
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivb) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies Holder of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such any Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (DB) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company or its counsel 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, and (C) the effectiveness of each Registration Statement filed hereunder;
(vc) promptly notify each selling Holder prepare and file with the Commission such amendments and supplements to such Registration Statement and the managing underwriter or underwriters, if any, when 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 Company becomes aware intended plan of the occurrence of any event as a result of which the applicable 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 prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwritersprospectus), if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(xe) on 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 prior to 15(d) of the date on which the applicable Registration Statement is declared effective or becomes effective, Securities Act;
(f) use its commercially reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” sky laws of each state and other jurisdiction of such jurisdictions as the United States as any selling Holder or managing lead underwriter or underwriters, if any, or their respective counsel reasonably request in writing requests and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered owned by the Registration Statement; such seller (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 or otherwise be required to take any action which would subject it qualify but for this Section 3(f), (ii) consent to taxation or general service of process in any such jurisdiction where it is not then so subjectjurisdiction, or (iii) subject itself to taxation in any such jurisdiction);
(xig) promptly notify in connection with any sale writing each seller of such Registrable Securities that will (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 the prospectus included in such securities no longer being 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 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, cooperate with each selling Holder and such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing statements therein not misleading;
(h) cause all such Registrable Securities to be sold and listed on each securities exchange on which similar securities issued by the Company are then listed and, if not bearing any restrictive Securities Act legends; and 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 denominations number of “road shows”, investor presentations and marketing events as the underwriters managing such names as such selling Holder or the underwriter(soffering may reasonably request), if any, may request at least two Business Days prior to such sale ;
(k) make available for inspection by any seller of Registrable Securities; provided that , 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 may satisfy its obligations hereunder without issuing physical stock certificates through as shall be necessary to enable them to exercise their due diligence responsibility, and cause the use of The Depository Trust Company’s Direct 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 SystemStatement;
(xiil) cooperate and assist in any filings required to be made otherwise comply 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 all applicable rules and regulations of each 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 exchangeRegistration Statement for sale in any jurisdiction, and the Company shall use its commercially reasonable best efforts promptly to obtain the withdrawal of such order;
(n) use its 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiio) cooperate with the Holder and the placement agent, if any, to facilitate the timely preparation and delivery of certificates (not later than 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 placement agent or Holder may request;
(p) cooperate with the Holder covered by the Registration Statement and each underwriter or agent participating in 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 the applicable such Registration StatementStatement (and, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct if such Registration System;
(xiv) in the case of includes 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 underwritten Public Offering, dated the date of the closing under the underwriting agreement;
(xv) in the case of an Underwritten Offering), obtain for delivery to and 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 statementsthe 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 content for covering such matters of the type customarily covered by legal opinions of Underwritten Offeringsuch nature, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down which opinion shall be addressed to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesunderwriters.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 2 contracts
Sources: Registration Rights Agreement (Maison Solutions Inc.), Securities Purchase Agreement (Maison Solutions Inc.)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale holders of Registrable Securities request that any Registrable Securities be registered pursuant to the provisions of this Agreement, through an Underwritten Offering or otherwise, the Company shall use its reasonable best efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto the Company shall as soon as reasonably practicable:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, furnish or otherwise make available copies of all documents (Aincluding exhibits thereto) furnish proposed to be filed (other than Exchange Act documents incorporated by reference) to the selling holders of the Registrable Securities, the Selling Holders’ Counsel, the underwriters, if any, and to counsel for the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders other documents reasonably requested by such counsel, including any comment letters from the Commission, provide reasonable time for the selling holders of the Registrable Securities, the Selling Holders’ Counsel, the underwriters, if any and counsel for the underwriters to review and comment on such documents, and include all such comments as reasonably requested by such holders, the underwriters, if any, and their respective counsel.
(b) subject to any other applicable terms and conditions herein, prepare and (B) consider in good faith any comments file with the Commission a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and maintain the effectiveness of such Registration Statement for the underwriters and Holders and their respective counsel on such documentsperiod provided herein;
(iic) prepare and file with the SEC Commission such amendments, post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with for the terms of this Agreement period provided herein and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) such Registrable Securities in the case of a Shelf Registration, prepare and file accordance with the SEC such amendments and supplements to such Registration Statement and the Prospectus used intended methods of disposition set forth in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivd) notify each selling holder of Registrable Securities, promptly after the participating Holders and the managing underwriter or underwritersCompany receives notice thereof, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) time 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement has been declared effective or such a supplement to any Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness forming a part of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposehas been filed;
(ve) promptly notify furnish to each selling Holder and the managing underwriter or underwritersholder of Registrable Securities, if anywithout charge, when the Company becomes aware such number of the occurrence copies of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such Holder or underwriter seller may reasonably request (it being understood that in order to facilitate the disposition of the Registrable Securities owned by such seller, and the Company hereby consents to the use of such Prospectus or any amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriterProspectus;
(xf) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel holder reasonably request in writing requests and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect is required to be kept effect, and so as do any and all other acts and things which may be reasonably necessary or advisable to permit enable such holders to consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 or business, subject itself to take any action which would subject it to general taxation or 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 8(f);
(xig) in connection with any sale promptly notify each selling holder 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 at any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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, at the request of any such holder, the Company shall promptly prepare and furnish any such holder 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 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;
(h) upon reasonable notice and during normal business hours 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 Company and its Subsidiaries (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 Inspector in accordance 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 Section 8(h) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information, or (ii) (A) either the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the rules Commission or documents provided supplementally or otherwise, or the Company reasonably determines in good faith that such Records are confidential and regulations (B) the Company so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to clause (ii) such holder of Registrable Securities 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 Securities agrees that it shall, upon learning that disclosure of such exchangeRecords is sought in a court of competent jurisdiction, to the extent legally permitted, 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;
(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 reasonable best efforts to cause the such Registrable Securities covered to be listed on each securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed, on a national securities exchange selected 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 SecuritiesCompany;
(xiiik) not later than in connection with an Qualified Offering, (i) enter into such customary agreements (including underwriting and lock-up agreements in customary form), including making such customary representations and warranties to the selling holders of Registrable Securities and any underwriters, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, (ii) use its reasonable best efforts to furnish to the selling holders of Registrable Shares and any underwriter, a signed counterpart, addressed to the underwriter and the selling holders of Registrable Shares, (A) an opinion or opinions of counsel to the Company and updates thereof and customary negative assurance letters and (B) a “cold comfort” letter dated the effective date of the applicable such Registration Statement, provide a CUSIP number for all Registrable Securities Statement and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xiv) 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 any underwriting agreement;
(xv) in the case of an Underwritten Offering, obtain for delivery to and 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 agreement from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) accountants, each in customary form and content for covering such matters of the type customarily covered by opinions or comfort letters, as the case maybe, as the Investor and the underwriters may reasonably request, and (iii) take all such other customary actions as the holders of Underwritten Offeringsuch Registrable Securities or any managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicablewithout limitation, dated the date of execution making appropriate officers of the underwriting agreement Company available to participate in “road show” and brought down to other customary marketing activities (including one-on-one meetings with prospective purchasers of the closing under the underwriting agreementRegistrable Securities);
(xvil) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC Commission and make generally available to its security holders, as soon as reasonably practicable, but stockholders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder) no later than 90 30 days after the end of the 12-month period beginning with the first day of the Company’s first full fiscal 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 , which earnings statement shall cover said 12-month period, and which requirement will 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within satisfied if the meaning of Section 2(11) of Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act); and
(m) without limiting Section 8(f) above, if any, of the use its reasonable best efforts to cause such Registrable Securities to be Registered, (C) the sale registered with or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained approved by such Holder other governmental agencies or any such underwriter, authorities as selected may be necessary by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties virtue of the Company that are available to the Company, business and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers operations of the Company to participate enable the holders of such Registrable Securities to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(n) notify the customary “road show” presentations that may be reasonably requested holders of Registrable Securities promptly of any request by the managing underwriter Commission for the amending or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; andsupplementing of such Registration Statement or Prospectus or for additional information;
(xxio) take all other customary steps reasonably necessary to effect advise the Registration, offering and sale holders of the Registrable Securities., promptly after it shall receive notice or obtain knowledge thereof, of (i) the issuance of any stop order, injunction or other order or requirement by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose, (ii) the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any Registrable Securities under state securities or “blue sky” laws or the initiation or threatening of any proceeding for such purpose and (iii) the removal of any such stop order, injunction or other order or requirement or the lifting of any such suspension and promptly use its reasonable best efforts to prevent the issuance of any stop order, injunction or other order or requirement or to obtain its withdrawal at the earliest possible moment if such stop order, injunction or other order or requirement should be issued;
(bp) As a condition precedent to any Registration hereunder, cooperate with the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership holders of Registrable Securities 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;
(q) otherwise use its reasonable best efforts to take all other matters as steps necessary, proper and advisable to effect the Company may from time to time registration of Registrable Securities contemplated hereby and reasonably request in writing. Each 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 holders of this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of facility the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thdisposition.
Appears in 1 contract
Registration Procedures. (a) a. In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseCompany's registration obligations under Section 2 hereof, the Company shall use reasonable best efforts effect such registrations to effect or cause the Registration and permit the sale of such the Registrable Securities in accordance with the intended method or methods of disposition thereof andintended by the holders of such Registrable Securities (including one or more Underwritten Offerings), and pursuant thereto the Company shall as expeditiously as possible:
(i) prepare i. Prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or ProspectusRegistration 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 cause each such Registration Statement to become effective and remain effective as provided herein; provided, that before filing any such Registration Statement or Prospectus or any amendments or supplements thereto, thereto (Aother than documents that would be incorporated or deemed to be incorporated therein by reference and that the Company is required by applicable securities laws or stock exchange requirements to file) the Company shall furnish to the underwritersholders of the Registrable Securities covered by such Registration Statement, if any, the Initial Purchasers and to the Holders participating in such RegistrationSpecial Counsel, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters holders and such participating Holders and their respective counselthe Special Counsel, and the Company shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (Bother 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) consider to which the holders of a majority in good faith any comments aggregate principal amount of the underwriters and Holders and their respective counsel Registrable Securities covered by such Registration Statement, the Initial Purchasers or the Special Counsel shall reasonably object on such documents;a timely basis.
(ii) prepare . Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in accordance with Section 2; cause the terms of this Agreement 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 of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and during the Prospectus used applicable period in connection therewith as may be necessary to keep accordance with the methods of disposition intended by the holders thereof set forth in such Registration Statement effective and as so amended or to comply with such Prospectus as so supplemented.
iii. Notify the provisions selling holders of Registrable Securities, the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders Initial Purchasers and the managing underwriter or underwriters, if anySpecial Counsel promptly, and (if requestedrequested by any such Person) confirm such advice notice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Aa) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bb) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments federal or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary governmental authority 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 effectiveness 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other ththe
Appears in 1 contract
Sources: Registration Rights Agreement (Incyte Pharmaceuticals Inc)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale of Company is required to register Registrable Securities pursuant to this Agreement, through an Underwritten Offering in a Demand Registration or otherwisea Piggyback Registration, the Company shall will use reasonable its best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended methods plan of disposition thereof anddistribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC as soon as practicable a Registration Statement with respect to such Registrable Securities and use its best efforts to cause such Registration Statement to become effective and remain effective until the Registrable Securities covered by such Registration Statement have been sold, provided that before filing a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) the Company shall 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, draft copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counselunderwriters, and (B) consider in good faith the Company shall not file any comments Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the Holders of a majority of the underwriters and Holders and their respective counsel on Registrable Securities covered by such documentsRegistration Statement or the underwriters, if any, shall reasonably object;
(iib) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be 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 used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective are sold in accordance with the terms intended plan of this Agreement and to comply with the provisions of the Securities Act with respect distribution set forth in such Registration Statement or supplement to the disposition of all of the Shares Registered thereonProspectus;
(iiic) 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) promptly notify the participating selling Holders of Registrable Securities and the managing underwriter or underwritersunderwriter, if any, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company writing:
(Ai) when the applicable Prospectus or any supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective,
(Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, ,
(Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose,
(Div) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by clause (i) of paragraph (o) below cease to be true and correct accurate in all material respects, and ,
(Ev) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its of the existence of any fact which results in the Registration Statement, the Prospectus or any document incorporated therein by reference containing a Misstatement;
(d) make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible time;
(viie) promptly if requested by the managing underwriter or a Holder of Registrable Securities being sold in connection with an underwritten offering, immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, underwriter and the Holders may reasonably request to of a majority of the Registrable Securities being sold agree should be included therein in order relating to permit the intended method of distribution 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 as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiif) 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 underwriter, if any, and 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;
(g) furnish to each selling Holder of Registrable Securities and each the managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy of the applicable Registration Statement and any amendment or post-effective amendment amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ixh) deliver to each selling Holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable each Prospectus (including and each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that the Company consents hereby consenting to the use of each such Prospectus (or any amendment or supplement thereto preliminary prospectus) by each of the selling Holder Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus (or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriterpreliminary prospectus);
(xi) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling HolderHolders of Registrable Securities, 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 each state and other jurisdiction of such jurisdictions in the United States as any such selling Holder Holders or managing underwriter or underwriters, if any, or their respective counsel reasonably request underwriters may designate in writing and do any and all other acts or things reasonably anything else necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(xij) in connection cooperate with any sale the selling Holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwritersunderwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register cause such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriter may request at least two Business Days three business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiik) 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 in the United States as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiil) if the Registration Statement or the Prospectus contains a Misstatement, prepare a supplement or 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 a Misstatement;
(m) use its best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on any national securities exchange or authorized for quotation on NASDAQ or in the National Market System, if requested by the Holders of a majority of such Registrable Securities or the managing underwriter, if any;
(n) provide a CUSIP number for all Registrable Securities not later than the effective date of the applicable Registration Statement;
(o) enter into such agreements (including an underwriting agreement) and do anything else necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities, provide a CUSIP number for all and in such connection:
(i) make such representations and warranties to the Holders of such Registrable Securities and provide the applicable transfer agent with printed certificates for underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings;
(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 underwriter, if any, and the Holders of a majority of the Registrable Securities which are being sold) addressed to each selling Holder and the underwriter, if any, covering the matters customarily covered in a form eligible for deposit with The Depository Trust Company; provided that the Company opinions delivered to underwriters in primary underwritten offerings and such other matters as may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systembe reasonably requested by such Holders or underwriters;
(xiviii) in obtain "cold comfort" letters and updates thereof from the case of an Underwritten Offering, obtain for delivery to and Company's independent certified public accountants addressed to the selling Holders of Registrable Securities and the underwriter or underwriters, an opinion from the Company’s outside counsel if any, such letters to be in customary form and content for covering matters of the type of Underwritten Offering, dated the date of the closing under the underwriting agreementcustomarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings;
(xviv) if an underwriting agreement is entered into, cause the same to include the indemnification and contribution provisions and procedures of Section 7 hereof with respect to all parties to be indemnified pursuant to said Section (or, with respect to the indemnification of such underwriters, such similar indemnification and contribution provisions as such underwriters shall customarily require); and
(v) deliver such documents and certificates as may be requested by the Holders of a majority of the Registrable Securities being sold and the managing underwriter, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the case of an Underwritten Offering, obtain for delivery to 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 underwriter or underwriters and, to the extent agreed otherwise reasonably requested by the Company’s independent certified public accountantsHolders of a majority of the Registrable Securities being sold;
(p) make available for inspection by representatives of the Holders of a majority of the Registrable Securities being sold, each selling Holderany underwriter participating in any disposition pursuant to such Registration Statement, a comfort letter from and any attorney or accountant retained by the sellers or any such underwriter, all financial and other records and pertinent corporate documents and properties of the Company’s independent certified public accountants (, and cause the independent certified public accountants with respect Company's officers, directors and employees to supply all information reasonably requested by any acquired company financial statements) in customary form and content for the type of Underwritten Offeringsuch representative, including with comfort letters customarily delivered underwriter, attorney or accountant in connection with quarterly period financial statements if applicablethe Registration; provided that any records, dated information or documents that are designated by the date Company in writing as confidential shall be kept confidential by such Persons unless disclosure of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;such records, information or documents is required by court or administrative order; and
(xviq) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC 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 holders earnings statement statements satisfying the provisions of Section 11(a) of the Securities Act and Act, no later than 45 days after the rules and regulations promulgated thereunder and covering end of any 12-month period (or 90 days, if such period is a fiscal year) (x) commencing at the period end of at least 12 monthsany fiscal quarter in which Registrable Securities are sold to underwriters in an underwritten offering, but or, if not more than 18 monthssold to underwriters in such an offering, (y) beginning with the first month of the Companys first fiscal quarter commencing 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable shall cover said 12-month periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Registration Procedures. (a) In connection with the Registration and/or sale case of Registrable Securities each registration effected by the Company pursuant to this Agreement, through an Underwritten Offering the Company will keep the Holders, as applicable, advised in writing as to the initiation of each registration and as to the completion thereof. The Company alone shall determine and control all decisions concerning any registration of the Company's securities which might give rise to the registration rights granted in this Agreement, including any registration in which Shares of any Holders of Registrable Securities are to be included. The Company's exclusive right to make decisions shall include, without limitation, the decision as to whether to use underwriters, the selection of underwriters and arrangements therewith, the size, timing and other terms of any offering, the provisions of the registration statements and prospectuses and all supplements and amendments thereto, the selection of accountants and attorneys for the Company, and the states in which the sale of Shares shall occur and be registered or otherwisequalified for sale. At its expense, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof andwill:
(ia) prepare and file keep such registration effective for a period of ninety (90) days or until the required Registration StatementHolders, including all exhibits and financial statements required under as applicable, have completed the Securities Act to be filed therewith, and before filing with distribution described in the SEC a Registration Statement or Prospectus, or any amendments or supplements registration statement relating thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentswhichever first occurs;
(iib) prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such Registration Statement and the Prospectus used in connection therewith registration statement as may be necessary to keep each registration statement effective for the applicable period, or such Registration Statement effective in accordance with shorter period which will terminate when all Registrable Securities covered by such registration statement have been sold; cause each Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the terms of this Agreement Act; and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during the applicable period in accordance with the intended method or methods of distribution by the Holders thereof set forth in such registration statement or supplement to the Prospectus; the Company shall 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 Shares Registered thereonRegistrable Securities covered thereby not being able to sell such Registrable Securities during that period if the actions taken by the Company were 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 subsection (f) of this Section 2.3, if applicable;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating selling Holders and the managing underwriter or underwriters, if anyof Registrable Securities promptly, and (if requestedrequested by any such person or entity) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any Prospectus supplement or post-effective amendment or supplement to such Prospectus has been filed, and, with respect to the registration statement or any post-effective amendment, when the same has become effective, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority Commission for amendments or supplements to such Registration Statement the registration statement or such the Prospectus or for additional information, (Ciii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus registration statement or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respectsthat purpose, and (Eiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiid) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if anyRegistrable Securities, without charge, as many copies of the applicable registration statement, Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such selling Holder or underwriter of Registrable Securities may reasonably request request;
(it being understood that the Company consents e) prior to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the public offering and sale of the Registrable Securities covered by such Prospectus Securities, register or any amendment qualify or supplement thereto) and such other documents as such cooperate with the selling Holder or underwriter may reasonably request in order to facilitate the disposition Holders of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, 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” " laws of each state and other jurisdiction of the United States such jurisdictions as any selling Holder or managing underwriter or underwritersseller reasonably requests in writing, if anyconsidering the amount of Registrable Securities proposed to be sold in each such jurisdiction, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 Statementregistration 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 that would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxif) take all upon the occurrence of any event contemplated by subsection (b) of this Section 2.3, prepare a supplement or post-effective amendment to the registration statement or the related Prospectus or any document incorporated therein by reference or file any other customary steps reasonably necessary required document, if necessary, so that, as thereafter delivered to effect the Registration, offering and sale purchasers of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, 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. The Company may require each Holder seller of Registrable Securities as to which any Registration is being effected to furnish to the Company such information regarding the proposed 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 such Holder of Registrable Securities 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in subsections (c)(ii) through (c)(iv) of this Section 2.04(a)(v)2.3, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such the Registration Statement until such Holder’s 's receipt of the copies of the supplemented or amended Prospectus as contemplated by subsection (f) of this Section 2.04(a)(v)2.3, or until such Holder 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 that 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 's expense) all copies, other ththan 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 referred to in subsection (a) of this Section 2.3, shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by subsection (f) of this Section 2.3 or the Advice.
Appears in 1 contract
Sources: Registration Rights Agreement (Modtech Holdings Inc)
Registration Procedures. (a) In connection Whenever the Shareholder has made a Request in accordance with the Registration and/or sale of Section 5.1 that any Registrable Securities be registered pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause as expeditiously as reasonably practicable:
(a) (i) in no event later than 30 days after the Registration and receipt by the sale 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 methods of disposition distribution thereof and:
(i) prepare specified in such Request, and file the required shall use reasonable best efforts to have such Required Registration Statement or Required Shelf Registration Statement, including as the case may be, declared effective by the SEC as soon as practicable thereafter and subject to the Blackout Periods set forth in Section 5.2, to keep such Required Registration Statement or Required Shelf Registration Statement, as the case may be, continuously effective (x) in the case of a Demand Registration, 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 exhibits and financial statements required under of the Registrable Securities Act to be filed therewithcovered by such Required Registration Statement have been sold pursuant thereto) or (y) in the case of a Shelf Registration, and before 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 ProspectusRequired Shelf Registration Statement or the related 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 required by the rules, regulations 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, and (ii) before filing such Required Registration Statement or Required Shelf Registration Statement, as the case may be, or any amendments or supplements thereto, (A) furnish provide to the underwriters, if any, Shareholder and to the Holders participating in such Registrationany managing underwriter(s), copies of all documents prepared proposed to be filedfiled or furnished, which including documents will be subject to the review of such underwriters and such participating Holders and their respective counselincorporated by reference, and (Bthe Shareholder and the managing underwriter(s) consider in good faith any comments of shall have the underwriters opportunity to review and Holders comment thereon, and their respective counsel on the Company will make such documentschanges and additions thereto as may reasonably be requested by the Shareholder and the managing underwriter(s) prior to such filing, unless the Company reasonably objects to such changes or additions;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith (subject to the review and comment provisions set forth in Section 5.7(a) above) as may be necessary to keep maintain the effectiveness of such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of securities covered by such Registration Statement for the Shares Registered thereonperiod set forth in (a) above;
(c) furnish to the Shareholder and each managing underwriter or other 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) (in each case including all exhibits other than those which are being incorporated into such Registration Statement by reference and that are publicly available) and such other documents as the Shareholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Shareholder and its Affiliates;
(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 Shareholder or any managing underwriter or other purchaser may reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Shareholder and its Affiliates; 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, (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 case 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 take such other actions as the Shareholder, 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 other information meetings organized by the managing underwriter(s) or other purchaser(s) and otherwise reasonably cooperating 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 two such offerings in any calendar year) and (iii) cause to be delivered to the Shareholder 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 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, as then in effect, contains an untrue statement of a Shelf Registrationmaterial 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 so that, as thereafter delivered to the holders 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;
(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 file with cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement not later than the SEC effective date of such amendments registration statement;
(i) enter into such customary agreements and supplements use reasonable best efforts to take all such other actions as the Shareholder 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 Shareholder and any underwriter or other purchaser participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Prospectus used Shareholder 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 Shareholder or any such underwriter or other purchaser, attorney, accountant or agent in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivk) notify if such offering of Registrable Securities is made pursuant to a Registration Statement, use reasonable best efforts to obtain “comfort” letters dated the participating Holders 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 by “comfort” letters in connection with underwritten offerings as the Shareholder, managing underwriter underwriter(s) or underwritersother purchaser(s) reasonably request;
(l) use reasonable best efforts to furnish, at the request of the Shareholder 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 “10b-5” 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 Shareholder, 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 anyit is issued;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and (if requested) confirm such advice in writing and provide copies of the relevant documentsmake available to its security holders, as soon as reasonably practicable after notice thereof is received 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 Shareholder an executed copy of each letter written by or on behalf of the Company to the SEC or the staff of the SEC (A) when 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 applicable 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 has been filed to be declared effective by the SEC as soon as reasonably practicable and shall file an acceleration request following the resolution or becomes effectiveclearance of all SEC comments or, or when if applicable, following notification by the applicable Prospectus SEC that any such registration statement or any amendment thereto will not be subject to review;
(p) reasonably cooperate with the Shareholder and each underwriter or supplement other purchaser participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to such Prospectus has been filedbe made with FINRA;
(q) notify in writing the Shareholder and the underwriter or other purchaser, if any, of the following events as promptly as reasonably practicable:
(Bi) the effectiveness of any written comments by the SEC or such Registration Statement;
(ii) any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such Prospectus the prospectus or for additional information, information and when same has been filed and become effective;
(Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings by any Person for such purposes, that purpose;
(Div) if, at any time, the representations and warranties suspension of the Company registration of the subject shares of the Registrable Securities in any applicable underwriting agreement cease to be true and correct in all material respects, and state jurisdiction; and
(Ev) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering the sale under the securities or sale in blue sky Laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(vr) promptly notify each selling Holder to the extent requested in writing by the lead managing underwriter(s) or other purchaser(s) with respect to an offering of Equity Securities having an aggregate value of at least $50,000,000 pursuant to a Registration Statement, agree, and cause the managing underwriter directors or underwriters, if any, when officers of the Company becomes aware to agree, to enter into customary agreements restricting the sale or distribution of Equity Securities during the period commencing on the date of the occurrence of any event as a result of request (which shall be no earlier than fourteen (14) days prior to the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case expected “pricing” of such Prospectus offering) and any preliminary Prospectus, in light continuing for not more than ninety (90) days after the date of the circumstances under “final” prospectus (or “final” prospectus supplement if the offering is made pursuant to a Shelf Registration Statement), pursuant to which they were made) not misleading or, if for any other reason it such offering shall be necessary during made, plus an extension period, as may be proposed by the lead managing underwriter(s) or other purchaser(s) to address FINRA regulations regarding the publishing of research, or such time lesser period to amend as is required by the lead managing underwriter(s) or supplement such Registration Statement or Prospectus in order to comply with the Securities Act other purchaser(s); 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;
(vis) use its reasonable best efforts to prevent or obtain take all other steps reasonably necessary to effect the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale registration of the Registrable Securities covered by such Prospectus or contemplated hereby. If 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long comparable statement refers to the Shareholder by name or otherwise as such Registration Statement remains in effect and so as to permit the continuance holder of sales and dealings in such jurisdictions any securities of the United States for so long as may Company and if the Shareholder is or would 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities reasonably expected to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) cooperate and assist in any filings required deemed to be made with the FINRA and each securities exchange, if any, on which any a controlling person 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in Shareholder shall have the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and right to require (i) the insertion therein of materiallanguage, furnished in form and substance satisfactory to the Shareholder and presented to the Company in writing, which in to the reasonable judgment effect that the holding by the Shareholder of such Holder(s) and their counsel should securities is not to be included; and for construed as a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection recommendation by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties Shareholder of the Company that are available to the Company, and cause investment quality of the Company’s officers, employees securities covered thereby and that such holding does not imply that the independent public accountants who have certified its Shareholder shall assist in meeting any future financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business requirements of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (zii) in the event that such information reference to the Shareholder by name or otherwise is independently developed not required by such Person;
(xx) to cause the executive officers Securities Act or any similar federal statute then in force, the deletion of the Company reference 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to Shareholder. In connection with any Registration hereunderStatement in which the Shareholder is participating, the Company may require each Holder as to which any Registration is being effected to Shareholder shall furnish to the Company in writing such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters Shareholder as the Company may from time to time reasonably request specifically for use in writingconnection with any such Registration Statement or prospectus. Each such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable Upon notice by the Company to comply with the provisions Shareholder of this Agreement.
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 (c) Each Holder agrees, that, or until such Blackout Period shall be earlier terminated in writing by the Company). The Shareholder agrees that upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(vclauses (f), such Holder will (q)(ii), (q)(iii), (q)(iv) or (q)(v) above, it shall forthwith discontinue its offer and disposition of Registrable Securities pursuant to such the applicable Registration Statement and the prospectus relating thereto until such Holder’s its receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thsupplement
Appears in 1 contract
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering Company's registration obligations hereunder and except as otherwise provided herein or otherwisepermitted hereunder, the Company shall will use its commercially reasonable best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Company will use its commercially reasonable efforts to as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement on any form for which the Company then qualifies or Prospectuswhich counsel for the Company deems appropriate for the proposed registration and which form is available for the sale of the Registrable Securities in accordance with the intended method of distribution; cooperate and assist in any filings required to be made with the NASD; and cause such Registration Statement to become effective; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, (A) the Company will 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 prepared proposed to be filed, which documents will be subject to the reasonable review of such underwriters and such participating Holders and their respective counselany underwriters, and (B) consider in good faith the Company will not file any comments Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the Holders of the Registrable Securities covered by such Registration Statement or any such underwriters and Holders and their respective counsel on such documentsshall reasonably object;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement effective in accordance with for the terms of duration required under this Agreement Agreement; 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 Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Shares Registered thereonHolders thereof set forth in such Registration Statement, as amended, or Prospectus or supplement thereto;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to the Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective; (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, ; (Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose; (Div) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (k) below cease to be true and correct in all any material respects, and respect; (Ev) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Registration Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
; and (vvi) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which makes any statement made in the applicable Registration Statement or Statement, the Prospectus included or any document incorporated therein by reference untrue is any material respect or which requires the making of any changes in such the Registration Statement (as then Statement, the Prospectus or any document incorporated therein by reference in effect) contains any untrue statement of a material fact or omits to state a material fact necessary order to make the statements therein (in the case of such Prospectus and any preliminary the Prospectus, in the light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(vid) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible time;
(viie) promptly if requested by the managing underwriter or underwriters in connection with an Underwritten Offering, incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may underwriters reasonably request to believe should be included therein in order relating to permit the intended method plan of distribution of the such Registrable Securities, including, without limitation, information with respect to (i) the principal amount of Registrable Securities being sold to the underwriters, (ii) the purchase price being paid and (iii) all other material terms of the Underwritten Offering; and make all required filings of such any 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;
(viiif) furnish to each selling Holder of Registrable Securities and each managing underwriter, if any, upon request and without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy 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);
(ixg) deliver to each selling Holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use of such the Prospectus or any amendment or supplement thereto by each of the selling Holder Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the 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;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each any underwriters and the selling Holder, the managing underwriter or underwriters, if anyHolders of Registrable Securities, 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 each state and other jurisdiction of the United States such jurisdictions as any underwriter or selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in any such jurisdiction where it is not then so already subject;
(xii) in connection cooperate with any sale managing underwriters and the selling Holders 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 (i) facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold that do not bear restrictive legends and not bearing any restrictive Securities Act legends; and to register (ii) enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) cooperate and assist in upon the occurrence of any filings event contemplated by paragraph (c)(vi) above, prepare a supplement or 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 be made with the FINRA and each securities exchange, if any, on which any purchasers of the Company’s securities are then listed Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or quoted omit to state any material fact necessary to make the statements therein not misleading;
(k) enter into such agreements 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 take all such other governmental agencies or authorities as may be actions necessary to enable the seller expedite or sellers thereof or the underwriter or underwriters, if any, to consummate facilitate the disposition of such Registrable Securities;
Securities and in such connection, whether or not the registration is an Underwritten Offering (xiiii) not later than make such representations and warranties to any underwriters and the effective date Holders of the applicable Registration Statement, provide a CUSIP number for all such Registrable Securities in form, substance and provide the applicable transfer agent with printed certificates for the Registrable Securities which scope as are customarily made by issuers to underwriters in a form eligible for deposit with The Depository Trust Companyprimary Underwritten Offerings; provided that (ii) obtain opinions of counsel to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and updates thereof addressed to any underwriters and each selling Holder covering the matters customarily covered in opinions requested in Underwritten Offerings; (iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to any underwriters and the selling Holders and the underwriter or underwritersof Registrable Securities, an opinion from the Company’s outside counsel such letters to be in customary form and content for covering matters customarily addressed in "cold comfort" letters to underwriters in connection with primary Underwritten Offerings; and (iv) deliver such documents and certificates as may be requested by any managing underwriters and the type Holders of Underwritten Offering, dated the date a majority of the closing under Registrable Securities being sold to evidence compliance with clause (j) above and with any customary conditions contained in the underwriting agreementagreement or other agreement entered into by the Company;
(xv1) make available for inspection by a representative of any underwriter participating in any Underwritten Offering or the case Holders of an Underwritten Offeringa majority of the Registrable Securities being registered therein, obtain for delivery and any attorney or accountant retained by such underwriters or selling Holders, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to and addressed to the underwriter supply all information reasonably requested by any such representative, underwriter, attorney or underwriters andaccountant; provided, to the extent agreed however, that any records, information or documents that are designated by the Company’s independent certified public accountantsCompany in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, each selling Holder, information or documents is required pursuant to 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreementjudicial or administrative order;
(xvim) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and the relevant state blue sky commissions; and make generally available to its the Company's 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 a period of at least 12 months, but not more than 18 months, beginning with the first month within three months after the effective date of the Registration Statement;; and
(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;
(xviiin) cause all such 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 is 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoinglisted, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the applicable listing requirements are satisfied. The Company may require each selling Holder as to which any Registration is being effected of Registrable Securities 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 of Registrable Securities agrees by acquisition of 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 this Agreement.
(c) Each Holder agrees, Registrable Securities that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v)5(j) hereof, such Holder will forthwith discontinue disposition of its Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the Holder receives copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v)5(j) hereof, or until such Holder it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and receives 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 's expense) all copies, other ththan 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 gives such a notice, the time periods regarding the maintenance of the effectiveness of any Registration Statement filed pursuant to Section 2(a) hereof will be extended by the number of days from the date the Company notifies the applicable Holders pursuant to Section 5(c)(vi) through the date when each Holder of Registrable Securities covered by such Registration Statement receives either the copies of the supplemented or amended prospectus contemplated by Section 5(j) hereof or the Advice.
Appears in 1 contract
Registration Procedures. (a) In connection with the Registrants' Shelf Registration and/or sale obligations set forth in Section 3 hereof, each of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall Registrants will use its reasonable best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Registrants will, as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to within the selling Holder and the managing underwriter or underwriterstime period provided in Section 3 hereof, if any, an amendment or supplement to such a Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents Statements relating to the use of such Prospectus or Shelf Registration on any amendment or supplement thereto by each selling Holder and appropriate form under the underwritersSecurities Act, if any, in connection with which form shall be available for the offering and sale of the Registrable Securities covered by such Prospectus in accordance with the intended method or methods of distribution thereof and shall include all financial statements (including, if applicable, financial statements of any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition Person which shall have guaranteed any indebtedness of the Registrable Securities by such Holder or underwriter;
(xRegistrants) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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 required 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities SEC to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s)filed therewith, if any, may request at least two Business Days prior to such sale of Registrable Securities; 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;
(xii) 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, 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 each such exchangethe NASD, and use its reasonable best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or any amendments or supplements thereto, the Registrants will furnish to the holders of the Registrable Securities covered by the applicable such Registration Statement and the underwriters, if any, copies of all such documents proposed to be registered with or approved filed, which documents will be subject to the review by such other governmental agencies holders and underwriters, and the Registrants will not file any Registration Statement or authorities any amendments or supplements thereto to which the holders of a majority in aggregate principal amount of such Registrable Securities or such managing underwriters, if any, shall reasonably object within 14 days;
(b) prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement as may be necessary to enable keep the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiii) not later than the Registration Statement effective date of for the applicable Registration Statementperiod, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) 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 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 with quarterly such shorter period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 will terminate when all Registrable Securities covered by the applicable such Registration Statement from and after a date not later than have been sold; cause the effective date of such Registration Statement;
(xviii) cause all Registrable Securities covered by the applicable Registration Statement Prospectus 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 supplemented by any required supplemental listing application;
(xix) provide (A) each Holder participating in the RegistrationProspectus supplement, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed and as so supplemented to be an underwriter within the meaning of Section 2(11) of filed pursuant to Rule 424 under the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Debt Registration Rights Agreement (Key Energy Group Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required to use reasonable its best efforts to effect or cause the Registration and the sale registration of such any Registrable Securities as provided in accordance with Section 10.2, the intended methods of disposition thereof andCompany will, as expeditiously as possible:
(i) prepare and Prepare and, in any event within ninety (90) calendar days after the end of the period within which requests for registration may be given to the Company, file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a registration statement (for the purposes of this Article X, a "Registration Statement or ProspectusStatement") with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective: provided, or any amendments or supplements theretothat (i) the obligation of the Company to effect such registration and/or cause such registration statement to become effective, may be postponed for such period of time when the financial statements of the Company required to be included in such registration statement are not available (A) furnish due solely to the underwriters, if any, and to fact that such financial statements have not been prepared in the Holders participating in such Registration, copies regular course of all documents prepared to be filed, which documents will be subject to business of the review of such underwriters and such participating Holders and their respective counsel, Company) and (Bii) consider the obligation of the Company to effect such registration and/or cause such registration statement to become effective, may be deferred for a single period not to exceed ninety (90) days if the filing of a registration statement would require the disclosure of material information concerning a possible financing, business combination or other material transaction which disclosure the Board of Directors has determined in good faith any comments of would be detrimental to the underwriters and Holders and their respective counsel on such documentsCompany;
(ii) After a Registration Statement is filed with the SEC, prepare and file with the SEC such amendments (including post-effective amendments) and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period not in accordance with the terms excess of this Agreement ninety (90) days (or such earlier date by which all securities that have been requested to be registered are sold) and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and the Prospectus used during such period in connection therewith as may be necessary to keep such Registration Statement effective and to comply accordance with the provisions intended methods of disposition by the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of participating Holders set forth in such Registration Statement;
(iviii) notify Furnish to the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without chargeof such Registrable Securities, such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents, as many conformed copies as such Holder or underwriter person may reasonably request request, in order to facilitate the public sale or other disposition 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)Registrable Securities;
(ixiv) deliver Use its best efforts to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as cause such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 reasonably necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, participating Holders to consummate the disposition of such Registrable SecuritiesSecurities in accordance with any plan of distribution described in such Registration Statement;
(xiiiv) not later than Immediately notify the effective date of participating Holders, at any time when a prospectus relating thereto is required to be delivered under the applicable Securities Act within the appropriate period mentioned in Section 10.4(a), if the Company becomes aware that the prospectus included in such Registration Statement, provide as then in effect, includes an untrue statement of a CUSIP material fact or omits 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 at the request of the participating Holders, deliver a reasonable number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the Company may satisfy its obligations hereunder without issuing physical stock certificates through 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 use statements therein, in light of The Depository Trust Company’s Direct Registration Systemthe circumstances under which they were made, not misleading;
(xivvi) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holdersthe participating Holders, in each case as soon as reasonably practicable, but no not later than 90 forty-five (45) calendar days after the end close of the 12-month period beginning with covered thereby (ninety (90) calendar days in case the first day period covered corresponds to a fiscal year of the Company’s first quarter commencing after the effective date of the applicable Registration Statement), an earnings statement satisfying of the Company which will satisfy 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 StatementAct;
(xviivii) provide and cause In the event the offering is an underwritten offering, use its best efforts to be maintained obtain a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement "cold comfort" letter 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company in customary form and to supply all information available to the Company reasonably requested by any covering such Person in connection with such Registration Statement matters as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed are customarily covered by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoletters; and
(xxiviii) Execute and deliver all instruments and documents (including in an underwritten offering an underwriting agreement in customary form) and take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to actions and obtain such Holder, its ownership of Registrable Securities certificates and other matters opinions as the Company may from time to time reasonably request are customary in writingunderwritten public offerings. Each such Any participating 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 this Agreement.
(c) Each Holder agrees, thatwill, upon the receipt of any written notice from the Company of the occurrence of any an event of the kind described in Section 2.04(a)(v10.4(e), such Holder will forthwith immediately discontinue disposition of the Registrable Securities pursuant to such the Registration Statement covering such Registrable Securities until such Holder’s receipt of the Holder receives copies of the supplemented or amended Prospectus prospectus contemplated by Section 2.04(a)(v10.4(e), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th.
Appears in 1 contract
Sources: Subscription Agreement (Windswept Environmental Group Inc)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale of Company is required to register Registrable Securities pursuant to this Agreement, through an Underwritten Offering in a Demand Registration or otherwisea Piggyback Registration, the Company shall will use reasonable its best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended methods plan of disposition thereof anddistribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC as soon as practicable a Registration Statement with respect to such Registrable Securities and use its best efforts to cause such Registration Statement to become effective and remain effective until the Registrable Securities covered by such Registration Statement have been sold, provided that before filing a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) the Company shall 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, draft copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counselunderwriters, and (B) consider in good faith the Company shall not file any comments Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the Holders of a majority of the underwriters and Holders and their respective counsel on Registrable Securities covered by such documentsRegistration Statement or the underwriters, if any, shall reasonably object;
(iib) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be 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 used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective are sold in accordance with the terms intended plan of this Agreement and to comply with the provisions of the Securities Act with respect distribution set forth in such Registration Statement or supplement to the disposition of all of the Shares Registered thereonProspectus;
(iiic) 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) promptly notify the participating selling Holders of Registrable Securities and the managing underwriter or underwritersunderwriter, if any, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Prospectus or any supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by clause (1) of paragraph (o) below cease to be true and correct accurate in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and of the existence of any fact which results in the Registration Statement, the Prospectus or any document incorporated therein by reference containing a Misstatement;
(vd) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits make every reasonable effort to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible time;
(viie) promptly if requested by the managing underwriter or a Holder of Registrable Securities being sold in connection with an underwritten offering, immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, underwriter and the Holders may reasonably request to of a majority of the Registrable Securities being sold agree should be included therein in order relating to permit the intended method of distribution 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 as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiif) 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 underwriter, if any, and 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;
(g) furnish to each selling Holder of Registrable Securities and each the managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy of the applicable Registration Statement and any amendment or post-effective amendment amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ixh) deliver to each selling Holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable each Prospectus (including and each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that the Company consents hereby consenting to the use of each such Prospectus (or any amendment or supplement thereto preliminary prospectus) by each of the selling Holder Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus (or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriterpreliminary prospectus);
(xi) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling HolderHolders of Registrable Securities, 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 each state and other jurisdiction of such jurisdictions in the United States as any such selling Holder Holders or managing underwriter or underwriters, if any, or their respective counsel reasonably request underwriters may designate in writing and do any and all other acts or things reasonably anything else necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(xij) in connection cooperate with any sale the selling Holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwritersunderwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register cause such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriter may request at least two Business Days three business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiik) 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 in the United States as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiil) if the Registration Statement or the Prospectus contains a Misstatement, prepare a supplement or 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 a Misstatement;
(m) use its best efforts to cause all registrable securities covered by the Registration Statement to be listed on any national securities exchange or authorized for quotation on NASDAQ or in the National Market System, if requested by the Holders of a majority of such Registrable Securities or the managing underwriter, if any;
(n) provide a CUSIP number for all Registrable Securities not later than the effective date of the applicable Registration Statement;
(o) enter into such agreements (including an underwriting agreement) and do anything else necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities, provide a CUSIP number for all and in such connection: make such representations and warranties to the Holders of such Registrable Securities and provide the applicable transfer agent with printed certificates for underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings; 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, if any, and the Holders of a majority of the Registrable Securities which are being sold) addressed to each selling Holder and the underwriter, if any, covering the matters customarily covered in a form eligible for deposit with The Depository Trust opinions delivered to underwriters in primary underwritten offerings and such other matters as may be reasonably requested by such Holders or underwriters; obtain "cold comfort" letters and updates thereof from the 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and 's independent certified public accountants addressed to the selling Holders of Registrable Securities and the underwriter or underwriters, an opinion from the Company’s outside counsel if any, such letters to be in customary form and content for covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; if an underwriting agreement is entered into, cause the same to include the indemnification and contribution provisions and procedures of Underwritten OfferingSection 7 hereof with respect to all parties to be indemnified pursuant to said Section (or, dated with respect to the date indemnification of such underwriters, such similar indemnification and contribution provisions as such underwriters shall customarily require); and deliver such documents and certificates as may be requested by the Holders of a majority of the Registrable Securities being sold and the managing underwriter, if any, to evidence compliance with clause (1) 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 underwriting agreementextent otherwise reasonably requested by the Holders of a majority of the Registrable Securities being sold;
(xvp) make available for inspection by representatives of the Holders of a majority of the Registrable Securities being sold, any underwriter participating in the case of an Underwritten Offeringany disposition pursuant to such Registration Statement, obtain for delivery to and addressed to the underwriter any attorney or underwriters and, to the extent agreed accountant retained by the Company’s independent certified public accountantssellers or any such underwriter, each selling Holder, a comfort letter from all financial and other records and pertinent corporate documents and properties of the Company’s independent certified public accountants (, and cause the independent certified public accountants with respect Company's officers, directors and employees to supply all information reasonably requested by any acquired company financial statements) in customary form and content for the type of Underwritten Offeringsuch representative, including with comfort letters customarily delivered underwriter, attorney or accountant in connection with quarterly period financial statements if applicablethe Registration; provided that any records, dated information or documents that are designated by the date Company in writing as confidential shall be kept confidential by such Persons unless disclosure of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;such records, information or documents is required by court or administrative order; and
(xviq) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC 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 holders earnings statement statements satisfying the provisions of Section 11(a) of the Securities Act and Act, no later than 45 days after the rules and regulations promulgated thereunder and covering end of any 12-month period (or 90 days, if such period is a fiscal year) (x) commencing at the period end of at least 12 monthsany fiscal quarter in which Registrable Securities are sold to underwriters in an underwritten offering, but or, if not more than 18 monthssold to underwriters in such an offering, (y) beginning with the first month of the Company's first fiscal quarter commencing 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable shall cover said 12-month periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Registration Rights Agreement (Prometheus Homebuilders Funding Corp)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant If and whenever TechTeam is required to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable its best efforts to effect or cause the Registration and the sale registration of such Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required any TechTeam Stock under the Securities Act as provided herein, TechTeam shall register or otherwise qualify the sale of TechTeam Stock under the "blue sky" laws in up to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) 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 in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any3 states, and the Holders following procedures shall apply:
(a) Shareholder shall promptly furnish to TechTeam such information regarding the Shareholder, the distribution of the TechTeam Stock and such other matters as TechTeam may reasonably request to be included therein in order to permit the intended method of distribution writing.
(b) TechTeam will bear all expenses of the Registrable Securities; registration, except for any underwriting spread and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified brokerage commission and transfer taxes incurred in connection with sales of the matters TechTeam Stock owned by the Shareholder and except for expenses of any legal counsel selected by the Shareholder to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, represent him in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;TechTeam Stock.
(xc) on or prior TechTeam will furnish to the date on which the applicable Registration Statement is declared effective or becomes effective, use Shareholder at its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification expense such number of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed prospectuses conforming 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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) requirements of the Securities Act and the rules and regulations promulgated thereunder and covering relating to the period of TechTeam Stock subject thereto as may, from time to time, be requested by the Shareholder. Further, TechTeam shall (a) notify the Shareholder, at least 12 months, but not more than 18 months, beginning with any time when a prospectus relating to the first month after the effective date of the Registration Statement;
(xvii) provide and cause TechTeam Stock is required 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of delivered under the Securities Act, of the happening of any event which TechTeam, in its best judgment, believes would make a supplement to, or an amendment of, such prospectus necessary or appropriate, and (b) at the request of the Shareholder, prepare and furnish thereto a reasonable number of copies of any supplement to, or any amendment of, such prospectus that may be necessary so that, thereafter delivered to the Shareholder, such prospectus shall not include 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 in light of the circumstances when made.
(d) If the Shareholder's TechTeam Stock is to be distributed in any underwritten offering, the Shareholder shall be a party to the underwriting agreement entered into by TechTeam in connection therewith, and the representations and warranties by, and the other agreements on the part of TechTeam, including any lock-up provisions, to or for the benefit of the underwriter shall also be made to and for the benefit of the Shareholder.
(e) Shareholder agrees (except to the extent that Shareholder is prohibited by applicable law from agreeing to withhold TechTeam Stock from sale), if anyrequested in a timely notice from the managing underwriters in an underwritten offering, of the Registrable Securities not to be Registered, (C) the effect any public sale or placement agent therefordistribution of TechTeam Stock, if any, including a sale pursuant to Rule 144 under the Securities Act (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, except as selected by such Holder, the opportunity to participate in the preparation part of such Registration Statementunderwritten offering), each Prospectus included therein or filed with during the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable 30 day period prior to and during the filing 90-day period beginning on the closing date of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such Person gaining access to information or personnel each underwritten offering made 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesregistration statement.
(bf) As a condition precedent TechTeam shall not be required to maintain in effect any Registration hereunder, registration statement as it relates to TechTeam Stock held by the Company may require each Holder as to which any Registration is being effected to furnish to Shareholder beyond 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 such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably period necessary to enable the Company to comply with the provisions of this Agreement.
Securities Act (cotherwise than pursuant to Rule 415 or any similar regulation permitting "shelf registration") Each Holder agrees, that, upon receipt of any written notice from with respect to the Company distribution of the occurrence TechTeam Stock included therein. However, TechTeam will use its reasonable best efforts to continue to file those documents which will permit the Shareholder to qualify sales of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities TechTeam Stock pursuant to such Registration Statement until such Holder’s receipt of Rule 144 under the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thSecurities Act.
Appears in 1 contract
Registration Procedures. (a) In connection with the filing by the Company of a Demand Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseStatement, the Company 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 reasonable its best efforts to effect register or cause qualify the shares of Class A Common Stock and/or Class B Common Stock covered by a Demand Registration and Statement under the sale securities laws of such Registrable Securities states as Torchmark shall reasonably request; provided, however, that the Company shall not be required in accordance connection with this paragraph (b) to qualify as a foreign corporation or execute a general consent to 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 intended methods requirements of disposition thereof 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 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) prepare Offering Expenses in connection with a Demand Registration Statement shall be paid by Torchmark; provided, that in the event any shares of 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 pro rata 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 file the required denominator of which is the total number of shares included in the Demand Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;; and
(ii) prepare Offering Expenses in connection with a Company Registration Statement (as defined below) shall be paid by the Company; provided, that 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 pro rata portion of the Offering Expenses equal to the 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 file with included in the SEC such amendments and supplements to such Company Registration Statement and the Prospectus used denominator of which is the total number of shares included in connection therewith as may be necessary the Company Registration Statement.
(f) Prior to keep such Registration Statement effective in accordance with March 31, 2002, each time the terms Company proposes to register any of this Agreement and to comply with the provisions of the Securities Act 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 disposition 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 all its intention to do so and of Torchmark's rights under this Section 5.3(f). Torchmark may request within thirty (30) days after receipt of any such notice to include in the Company Registration Statement some or any portion of the Shares Registered thereon;
(iii) in the case shares 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter Class A Common Stock or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received Class B Common Stock then held by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC Torchmark or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) member of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Torchmark Group. The Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 reduced (pro rata among Torchmark and any other stockholder with similar registration rights based on the number of shares so requested to enable the seller or sellers thereof or the underwriter or underwriters, be registered) if any, to consummate the disposition of such Registrable Securities;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters shall be of the opinion that such inclusion would adversely affect the marketing of the securities to be sold. Torchmark's exercise of its right under this Section 5.3(f) to include shares in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may shall not be resumed, and if so directed by the Company, such Holder will deliver counted against Torchmark's right to the Company (at the Company’s expense) all copies, other threquest three registrations.
Appears in 1 contract
Sources: Public Offering and Separation Agreement (Waddell & Reed Financial Inc)
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale Company is required to effect the registration of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause and facilitate the Registration registration, offering and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof thereof, which, for avoidance of doubt, shall not include an underwritten offering, as promptly as is practicable and, pursuant thereto, the Company shall:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectuswith respect to such Registrable Securities, make all required filings required in connection therewith and (if the Registration Statement is not automatically effective upon filing) use reasonable best efforts to cause such Registration Statement to become effective as promptly as practicable; provided that before filing a Registration Statement or any amendments or supplements thereto, (A) the Company shall furnish to the underwriters, if any, and counsel to the Holders participating in for such Registration, registration copies of all documents prepared proposed to be filed, which documents will shall be subject to review by counsel to the review of such underwriters and such participating Holders and their respective counselat the Company’s expense, and (B) consider give the Holders participating in good faith any comments of the underwriters and Holders and their respective counsel such registration a reasonable opportunity to comment on such documentsdocuments and keep such Holders reasonably informed as to the registration process;
(iib) cause the Company’s representatives to supply all information reasonably requested by the relevant Holders, any Underwriter or their respective representatives in connection with the Registration Statement or Underwritten Offering that is customarily provided by issuers and their representatives in connection with a registration statement or Underwritten Offering;
(c) prepare and file with the SEC such amendments and supplements to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement or until all of the Registrable Securities covered by such Registration Statement have been disposed of and to comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all 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 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 Registrable Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of covered by such Registration Statement;
(ivd) notify furnish to each Holder participating in the participating Holders and the managing underwriter or underwritersregistration, if anywithout charge, and (if requested) confirm such advice in writing and provide number of copies of the relevant documentsProspectus 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 Holder may reasonably request, including in order to facilitate the disposition of the Registrable Securities owned by such Holder;
(e) use reasonable best efforts to (i) register or qualify such Registrable Securities under such other securities or blue sky laws of such U.S. jurisdiction(s) as soon as any Holder participating in the registration reasonably practicable after notice thereof is received by requests and (ii) do any and all other acts and things that may be necessary or reasonably advisable to enable such Holder to consummate the disposition of such Holder’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 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(e);
(Af) promptly notify each Underwriter and each Holder participating in the registration:
(i) each time when the applicable Registration Statement, any pre-effective amendment thereto, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment thereto has been filed or becomes effectivethereto, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (Cii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for any such purposes, purpose; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for offering sale under the applicable securities or sale in any jurisdiction or the initiation or threatening blue sky laws of any proceeding for such purposejurisdiction;
(vg) promptly notify each selling Holder and participating in such registration, at any time when a Prospectus relating thereto is required to be delivered under the managing underwriter or underwritersSecurities Act, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or that would cause the Prospectus included in such Registration Statement (as then in effect) contains any to contain an untrue statement of a material fact or omits to state a material omit any fact necessary to make the statements made therein (in the case of such Prospectus and any preliminary Prospectus, 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 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 light of the circumstances under which they were made;
(h) 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 reasonable best efforts to promptly obtain the withdrawal or lifting of any such order or suspension;
(i) not misleading orfile or make any amendment to any Registration Statement with respect to any Registrable Securities, if for or any other reason it shall be necessary during such time period to amend 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; provided, that (i) each Holder 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 in order and (ii) each Holder agrees to comply with notify the Securities Act and, in either case Company as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge of any inaccuracy or change in information previously furnished to the selling Company by such Holder and or of the managing underwriter or underwriters, if any, an amendment or supplement to occurrence of any event that would cause the Prospectus 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 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 Holder such that such Prospectus shall not contain any untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omit to state a material fact regarding such Holder or the distribution of such Registrable Securities necessary to make the statements therein not misleading in light of the circumstances under which will correct such statement or omission or effect such compliancethey were made;
(vij) use its reasonable best efforts cause such Registrable Securities to prevent or obtain be listed on each securities exchange on which the withdrawal of any stop order or other order suspending the use of any preliminary or final ProspectusCommon Stock is then listed;
(viik) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and cooperate with the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold and not bearing pursuant to such Registration Statement free of any restrictive Securities Act legends; legends and to register representing such Registrable Securities number of shares of Common Stock and registered in such denominations and such names as such selling Holder or the underwriter(s), if any, Holders of the Registrable Securities may reasonably request at least two Business Days a reasonable period of time prior to such sale sales of Registrable SecuritiesSecurities pursuant to such Registration Statement; provided 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;
(xii) 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;
(xiiil) not later than the effective date of such Registration Statement, provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement;
(m) not later than the applicable 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 which are in a form eligible for deposit with The Depository Trust Company; provided 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;
(xivn) enter into customary agreements (including underwriting agreements) and use reasonable best efforts to take such other actions as are reasonably requested by the relevant Holders in order to expedite or facilitate the case disposition of an such Registrable Securities, including, subject to the provisions of Section 2.2(b) with respect to a Marketed Underwritten Offering, obtain preparing for delivery and participating in a road show and other customary selling efforts as the Underwriters, if any, or such Holders reasonably request in order to expedite or facilitate such disposition;
(o) if requested by the relevant Holders or the Underwriter(s), if any, promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Holders and addressed such Underwriter(s), if any, may reasonably request to have included therein, including information relating to the selling “Plan of Distribution” of the Registrable Securities, information with respect to the number of Registrable Securities being sold to such Underwriter(s), the purchase price being paid therefor and any other terms of the 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 promptly as practicable after the Company is notified of the matters to be included in such Prospectus supplement or post-effective amendment;
(p) except to the extent prohibited by applicable Laws and subject to entry into a customary confidentiality agreement or arrangement, make available, after reasonable advance notice, for inspection by the relevant Holders, any Underwriter participating in any disposition of such Registrable Securities and any representative for such Holders and/or such Underwriter (collectively, the “Inspectors”), during business hours at the offices where such information is normally kept, any financial and other records and corporate documents of the Company (collectively, the “Records”) as will be reasonably necessary to enable them to conduct reasonable and customary due diligence with respect to the Company and the underwriter related Registration Statement and Prospectus and request the representatives of the Company to supply all information reasonably requested by any such Inspector; provided, however, that Records and information obtained hereunder will be used by such Inspectors only for purposes of conducting such due diligence;
(q) use its reasonable best efforts to obtain and deliver to each Underwriter a comfort letter from the independent registered public accounting firm for the Company (and additional comfort letters from the independent registered public accounting firm for any company acquired by the Company whose financial statements are included or underwritersincorporated by reference in the Registration Statement) in customary form and covering such matters as are customarily covered by comfort letters as such Underwriter may reasonably request; provided, however, that if the Company fails to obtain such comfort letter and the relevant offering is abandoned, then such Underwritten Offering or Demand Registration will not count as an Underwritten Offering or Demand Registration, as applicable, for purposes of determining when future Underwritten Offerings or Demand Registrations may be requested by Holders pursuant to Section 2.2(a) and Section 2.2(b);
(r) use its reasonable best efforts to obtain and deliver to each Underwriter a 10b-5 statement and legal opinion from the Company’s outside external counsel in customary form and content covering such matters as are customarily covered by 10b-5 statements and legal opinions delivered to Underwriters in Underwritten Offerings as such Underwriter may reasonably request; provided, however, that if the Company fails to obtain such statement or opinion and the relevant offering is abandoned, then such Underwritten Offering or Demand Registration will not count as an Underwritten Offering or Demand Registration, as applicable, for the type purposes of determining when future Underwritten Offering, dated the date of the closing under the underwriting agreementOfferings or Demand Registrations may be requested by Holders pursuant to Section 2.2(a) and Section 2.2(b);
(xvs) in the case of an Underwritten Offering, obtain for delivery to and 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) 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, as soon as reasonably practicablewithin the required time period, but no later than 90 days after the end an earnings statement covering a period of the twelve (12-month period ) months, beginning with the first day of the Company’s first fiscal quarter commencing after the effective date of the applicable Registration StatementStatement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an which earnings statement satisfying will satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated Rule 158 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 Statementor any successor provisions thereto;
(xviit) provide make representations and cause warranties to be maintained a transfer agent such Holders 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 Underwriters 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)agents, if any, of the Registrable Securities in form, substance and scope as are customarily made by issuers in secondary offerings; and
(u) use reasonable best efforts to be Registered, (C) the sale or placement agent thereforcooperate with each such Holder and each Underwriter, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate participating in the preparation disposition of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) Registrable Securities and their respective counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 filings required 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesmade with FINRA.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Registration Rights Agreement (Rent a Center Inc De)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration StatementSubject to Section 6.13(b), including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) Parent shall prepare and file with the SEC such amendments and supplements to such the Stockholder Registration Statement and the Prospectus any prospectus used in connection therewith with such Stockholder Registration Statement as may be reasonably necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Stockholder 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 pursuant to such Stockholder Registration Statement during the 3rd anniversary after Effective Period.
(ii) If any prospectus used in connection with the effective date Stockholder Registration Statement is amended or supplemented to comply with the requirements of the Securities Act, Parent shall promptly notify the Registering Stockholders and, if requested by Parent, the Registering Stockholders shall immediately cease making offers or sales of shares under the Stockholder Registration Statement until Parent shall have notified the Registering Stockholders that such prospectus has been so amended or supplemented.
(iii) Parent shall use commercially reasonable efforts to register or qualify the Registrable Shares covered by the Stockholder Registration Statement under the securities or Blue Sky laws of such Registration Statement;states as the Registering Stockholders shall reasonably request; provided, however, that Parent shall not be required to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction, unless the Parent is already subject to service in such jurisdiction and except as may be required by the Securities Act.
(iv) Parent shall notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies each Registering Stockholder promptly after Parent receives notice thereof of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) time when the applicable Stockholder 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 has been filed, (B) declared effective and of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to that Parent amend or supplement such the Stockholder 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;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;.
(xv) on Parent shall pay the expenses incurred by it in complying with its obligations under this Section 6.13, including all registration and filing fees, exchange listing fees and fees and expenses of Parent’s counsel and accountants, but (i) excluding any brokerage fees, selling commissions or prior to underwriting discounts incurred by the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, Registering Stockholders in connection with the registration or qualification of such Registrable Securities for offer and sale sales under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Stockholder Registration Statement remains in effect and so as to permit (ii) the continuance of sales fees 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 expenses 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable SecuritiesRegistering Stockholders.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Merger Agreement (Acme Packet Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities Company's registration obligations pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 3 hereof, the Company shall will use reasonable its best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Company will as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) furnish to the holders of the Registrable Securities covered by such Registration Statement and the managing underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject to the made available for review of by such underwriters holders and such participating Holders and their respective counselmanaging underwriters, and (Bi) consider with respect to any Demand Registration or S-3 Registration, the Company will not file any such Registration Statement or amendment thereto or any such Prospectus or any supplement thereto to which the holders of a majority in good faith any comments number of the underwriters Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object; and Holders and their respective counsel on (ii) with respect to any Piggy-Back Registration, the Company will not file any such documentsRegistration Statement or amendment thereto or any such Prospectus or any supplement thereto to which the holders of a majority in number of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object to any information contained therein related to such holders or the plan of distribution of such holders' Registrable Securities;
(iib) prepare and file with the SEC Securities and Exchange Commission such amendments and post-effective amendments to any Registration Statement, and such supplements to such Registration Statement and the Prospectus used in connection therewith Prospectus, as may be reasonably requested by any holders of a majority of Registrable Securities covered by the Registration Statement or any managing 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 otherwise necessary to keep such Registration Statement effective in accordance with for the terms of this Agreement applicable period and cause the Prospectus 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 methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement or supplement to the Prospectus;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders counsel to the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company writing,
(A1) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective,
(B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority Securities and Exchange Commission for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, ,
(C3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose,
(D4) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (n) below cease to be true and correct in all material respects, and correct,
(E5) 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;, and
(v6) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence existence of any event as a result of fact which results in the applicable Registration Statement or Statement, the Prospectus included in such Registration Statement (as then in effect) contains or any document incorporated therein by reference containing an untrue statement of a material fact or omits omitting to state a material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(vid) use its every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible moment;
(viie) promptly if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an Underwritten Offering, immediately incorporate in a Prospectus supplement or post-effective amendment such necessary information as the managing underwriters, if any, underwriters and the Holders may holders of a majority of the Registrable Securities being sold reasonably request to be have included therein in order relating to permit the intended method plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the 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 SecuritiesSecurities to be sold in such offering; and make all required filings of such Prospectus supplement or post-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;
(viiif) at the request of any selling holder of Registrable Securities, furnish to each such selling Holder holder of Registrable Securities and each managing underwriter, if any, without charge, as many such number of 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)) as such holder may reasonable request;
(ixg) deliver to each selling Holder holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use of such the Prospectus or any amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the 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;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, 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 each state and other jurisdiction of the United States such jurisdictions as any selling Holder seller or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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;
(xii) in connection cooperate with any sale the selling holders 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 and, if not required by applicable law, not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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;
(xiiik) if any fact contemplated by paragraph (c)(6) above shall exist during the period that the Company shall be required hereunder to use its best efforts to maintain the effectiveness of the applicable Registration Statement, prepare a supplement or 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) 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 in number of such Registrable Securities or by the managing underwriters, if any;
(m) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustees or transfer agent agents with printed certificates for the Registrable Securities which are 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;
(xivn) enter into agreements (including underwriting agreements) in a form reasonably satisfactory to the case Company and take all other appropriate and reasonable actions 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 OfferingRegistration:
(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, in a manner reasonably satisfactory to the Company;
(2) obtain for delivery 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 counsel to the holders of 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, in a manner reasonably satisfactory to the Company;
(3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling Holders holders of Registrable Securities and the underwriter or underwriters, an opinion from the Company’s outside counsel if any, such letters to be in customary form and content for covering matters of the type of customarily covered in "cold comfort" letters to underwriters in connection with primary Underwritten Offering, dated the date of the closing under the underwriting agreementOfferings;
(xv4) if an underwriting agreement is entered into, cause the same to set forth in full the indemnification provisions and procedures of Section 7 hereof (or such other substantially similar provisions and procedures as the underwriters shall reasonably request) with respect to all parties to be indemnified pursuant to said Section; and
(5) 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 paragraph (k) above and with any customary conditions contained in the case underwriting agreement or other agreement entered into by the Company. The actions set forth in the above paragraph (n) shall be done at the effectiveness of an Underwritten Offeringsuch Registration Statement, obtain for delivery to each closing under any underwriting or similar agreement as and addressed to the underwriter or underwriters and, to the extent agreed required thereunder and from time to time as may reasonably be requested by any selling holder in connection with the disposition of Registrable Securities pursuant to such Registration Statement, all in a manner consistent with customary industry practice;
(o) make available to a representative of the holders of a majority in number of the Registrable Securities being sold, any managing underwriter participating in any disposition pursuant to such Registration Statement, and any attorney or accountant retained by the Company’s independent certified public accountantssellers or managing underwriter, each selling Holderall financial and other records, a comfort letter from pertinent corporate documents and properties of the Company’s independent certified public accountants (, and cause the independent certified public accountants Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with the registration, with respect to each at such time or times as the Company shall reasonably determine; provided that any acquired company financial statements) records, information or documents that -------- are designated by the Company in customary form and content for the type writing as confidential shall be kept confidential by such Persons unless disclosure of Underwritten Offeringsuch records, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreementinformation or documents is required by court or administrative order;
(xvip) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC Securities and Exchange Commission, 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 statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(q) 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 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;NASD); and
(xviir) 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period promptly prior to the filing of such 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 upon reasonable notice at reasonable times for discussion of such document and for reasonable periods for inspection by the parties referred to make such changes in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available such document prior to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and filing thereof as counsel for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter selling holders or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps may reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the request. The Company may require each Holder seller of Registrable Securities as to which any Registration registration is being effected to furnish to the Company such information regarding such seller and 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 of Registrable Securities agrees by acquisition of 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 this Agreement.
(c) Each Holder agrees, Registrable Securities that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v)paragraph (k) above, 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 2.04(a)(v)paragraph (k) above, or until such Holder it is advised in writing by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such Holder holder will deliver to the Company (at the Company’s 's expense, unless such supplement or amendment is due to inaccurate information supplied by such holder to the Company in writing specifically for inclusion in the applicable Registration Statement) all copies, other ththan permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods mentioned in Section 4(a) hereof shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by paragraph (k) above or is advised in writing by the Company that the use of the Prospectus may be resumed.
Appears in 1 contract
Sources: Registration Rights Agreement (Colorado Greenhouse Holdings Inc)
Registration Procedures. (a) In connection with Obligations of the Registration and/or sale Company. Whenever registration of Registrable Securities has been requested pursuant to Section 3 or Section 4 of this Agreement, through an Underwritten Offering or otherwise, the Company shall use its reasonable best efforts to effect the registration and sale of such Registrable Securities in accordance with the Designated Holders' intended method of distribution thereof as quickly as practicable, and in connection with any such request, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement on any form for which the Company then qualifies or cause which counsel for the Registration Company and the Designated Holders shall deem appropriate and which form shall be available for the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewithdistribution thereof, and use its reasonable best efforts to cause such Registration Statement to become and remain effective; provided, however, that (A) before filing with the SEC a Registration Statement or Prospectus, prospectus or any amendments or supplements thereto, the Company shall provide counsel selected by the Designated Holders holding a majority of the Registrable Securities being registered in such registration (A"Holders' Counsel") furnish and any other Inspector with an adequate and appropriate opportunity to review such Registration Statement and each prospectus included therein (and each amendment or supplement thereto) to be filed with the underwriters, if anySEC, and will not file any Registration Statement or prospectus or any amendment or supplement thereto to which the Designated Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counselwhose Registrable Securities are being registered or sold pursuant thereto shall reasonably object, and (B) consider in good faith the Company shall notify the Holders' Counsel and each seller of Registrable Securities of any comments stop order issued or threatened by the SEC and take all reasonable action required to prevent the entry of the underwriters and Holders and their respective counsel on such documentsstop order or to remove it if entered as soon as possible;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with for the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereonperiods described herein;
(iii) in the case as soon as reasonably possible, furnish to each seller of Registrable Securities, prior to filing a Shelf RegistrationRegistration Statement, prepare and file with the SEC such amendments and supplements to copies of such Registration Statement as is proposed to be filed, and the Prospectus used in connection therewith as may be necessary to keep thereafter such Registration Statement effective and to comply with the provisions number of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as each such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(iv) notify the participating Holders and the managing underwriter register or underwriters, if any, and (if requested) confirm qualify such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement Registrable Securities under such other securities or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness "blue sky" laws of such Registration Statement or jurisdictions as any order preventing or suspending the use seller of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, Registrable Securities may reasonably request (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company notify each Designated Holder of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC), and furnish without charge to continue such qualification in effect for the selling Holder and the managing underwriter or underwritersperiods described herein, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable any such registration or qualification in effect for so long as such Registration Statement remains in effect and so as seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered owned by the Registration Statementsuch seller; provided 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 or otherwise be required to take any action which would qualify but for this Section 6(a)(iv), (B) subject it itself to taxation in any such jurisdiction solely as a result of this Section 6(a)(iv) or (C) consent to general service of process in any such jurisdiction where it is not then so subjectsolely as a result of this Section 6(a)(iv);
(xiv) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 such Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company or otherwise to enable the seller or sellers thereof or the underwriter or underwriters, if any, of Registrable Securities to consummate the disposition of such Registrable Securities;
(xiiivi) notify each seller of Registrable Securities at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not later than the effective date misleading in light of the applicable Registration Statementcircumstances under which they were made, provide and promptly prepare and file a CUSIP number for all supplement or amendment to such prospectus and furnish to each seller of Registrable Securities and provide a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, upon delivery to the applicable transfer agent with printed certificates for 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 Registrable Securities statements therein not misleading in light of the circumstances under which are 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 Systemthey were made;
(xivvii) in the case of enter into and perform customary agreements (including 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 underwriting agreement 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 Approved Underwriter 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)Company Underwriter, if any, selected as provided in Section 3 or Section 4, as the case may be) and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of the such Registrable Securities Securities;
(viii) make available for inspection by any seller of Registrable Securities, any managing underwriter participating in any disposition pursuant to be Registeredsuch Registration Statement, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, Holders' Counsel and (E) any attorney, accountant or other agent or representative retained by any such Holder seller or any such underwritermanaging underwriter (each, as selected by such Holderan "Inspector" and collectively, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above"Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to and its subsidiaries (collectively, the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, subject and cause the Company's and its subsidiaries' officers, directors and employees, and the independent public accountants of the Company, to the foregoing, provided that supply all information reasonably requested by any such 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 Inspector in connection with such Registration Statement. Records that the Company which the Company determines determines, in good faith faith, to be confidential, confidential and of which determination such Person is notified, it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (xA) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement, (B) the release of such information Records is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by ordered pursuant to a governmental entity, subpoena or similar process, other order from a court of competent jurisdiction or (yC) the information in such information is or becomes publicly Records was known without a breach of this Agreement, (F) such information is or becomes available to such Person the Inspectors on a non-confidential basis from a source other than prior to its disclosure by the Company or (z) has been made generally available to the public. Each seller of Registrable Securities agrees that it shall, upon learning that disclosure of such information Records is independently developed by such Personsought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(xxix) if such sale is pursuant to cause an underwritten offering, use its best efforts to obtain a "cold comfort" letter from the executive officers Company's independent public accountants in customary form and covering such matters of the Company to participate in the customary “road show” presentations that may be reasonably requested type customarily covered by "cold comfort" letters as Holders' Counsel or the managing underwriter or reasonably request;
(x) use its best efforts to furnish, at the request of any seller of Registrable Securities on the date such securities are delivered to the underwriters in any Underwritten Offering and otherwise for sale pursuant to facilitatesuch registration or, cooperate withif 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 participate to the seller making such request, covering such legal matters with respect to the Registrable Securities and the registration thereof in each proposed offering contemplated herein respect of which such opinion is being given as such seller may reasonably request and customary selling efforts related thereto; andare customarily included in such opinions;
(xxixi) otherwise use its 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 fifteen (15) months after the effective date of the Registration Statement, an earnings statement covering a period of twelve (12) months beginning after the effective date of the Registration Statement, in a manner which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed (provided that the applicable listing requirements are satisfied) and direct the Company's transfer agent to cooperate with the Designated Holders to facilitate the timely preparation and delivery of certificates not bearing any securities laws restrictive legends representing the Registrable Securities to be sold and in such denominations and names as the Designated Holders may request;
(xiii) keep Holders' Counsel advised in writing as to the initiation and progress of any registration under Section 3 or Section 4 hereunder;
(xiv) cooperate with each seller of Registrable Securities 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, Inc. (the "NASD");
(xv) file, when due, all reports and other filings required to be made by the Company pursuant to the Exchange Act so as to enable the Designated Holders to comply with the current public information requirements contained in paragraph (c) of Rule 144 under the Securities Act (or any successor provisions) and to qualify the Company for the use of a Registration Statement on Form S-3 for the resale of the Registrable Securities by the Designated Holders (if the Company otherwise meets the eligibility requirements for the use of Form S-3);
(xvi) use best efforts to take all other customary steps reasonably necessary to effect the Registration, offering and sale registration of the Registrable Securities.Securities contemplated hereby; and
(bxvii) As a condition precedent make any effort to obtain the withdrawal of any order suspending the effectiveness of any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thearliest possible time.
Appears in 1 contract
Registration Procedures. (a) In connection with the Registrants' Shelf Registration and/or sale obligations set forth in Section 3 hereof, each of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall Registrants will use all reasonable best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Registrants will, as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC SEC, within the time period provided in Section 3 hereof, a Registration Statement or ProspectusRegistration Statements relating to the Shelf 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 or incorporate by reference (i) all financial statements (including, if applicable, financial statements of any Person which shall have guaranteed any indebtedness of the Registrants) required by the SEC to be filed therewith and (ii) if the sale is by means of an underwritten offering, any other information that the managing underwriter(s) may reasonably request to have included therein, including, without limitation: (A) information relating to the "Plan of Distribution" of the Transfer Restricted Securities, (B) information with respect to the principal amount of Exchange Notes being sold to such underwriter(s), (C) the purchase price being paid therefor and (D) any other terms of the offering of the Transfer Restricted Securities to be sold in such offering, 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 use all reasonable efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or any amendments or supplements thereto, (A) the Registrants will 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 prepared proposed to be filed, which documents will be subject to the review by such holders and underwriters, and the Registrants will not file any Registration Statement or any amendments or supplements thereto to which the holders of a majority in aggregate principal amount of such underwriters and Registrable Securities or such participating Holders and their respective counselmanaging underwriters, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsif any, shall reasonably object within 14 days;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such the 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 as will terminate when all Registrable Securities covered by such Registration Statement effective in accordance have been sold or are no longer Transfer Restricted Securities; 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; comply with the terms applicable provisions of this Agreement Rules 424 and to 430A under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable 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. Notwithstanding the foregoing, the Registrants may suspend the effectiveness of the Shares Registered thereonRegistration Statement by written notice to the holders of Registrable Securities for a period not to exceed an aggregate of 45 days in any 90-day period (each such period, a "Suspension Period") if:
(i) an event occurs and is continuing as a result of which the Registration Statement would, in the Registrants' reasonable judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and
(ii) the Registrants reasonably determine that the disclosure of such event at such time would have a material adverse effect on the business of the Registrants (and their subsidiaries, if any, taken as a whole); provided, however, that in the event the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede the Registrants' ability to consummate such transaction, the Registrants may extend a Suspension Period from 45 days to 60 days; provided, however, that Suspension Periods shall not exceed an aggregate of 90 days in any 360-day period;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A1) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, (C3) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D4) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement Registrants contemplated by paragraph (o) below cease to be true and correct in all material respectscorrect, and (E5) of the receipt by the Company Registrants 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 and (v6) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as a result of which the applicable Registration Statement or the existence of any fact which makes any statement made in the Registration Statement, the Prospectus included or any document incorporated therein by reference untrue or which requires the making of any changes in such the Registration Statement (as then Statement, the Prospectus or any document incorporated therein by reference in effect) contains any untrue statement of a material fact or omits to state a material fact necessary order to make the statements therein (in not misleading. If at any time the case Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the Registrants shall use their reasonable efforts to obtain the withdrawal or lifting of such Prospectus and any preliminary Prospectus, in light of order at the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such complianceearliest possible time;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusthe Registration Statement at the earliest possible moment;
(viie) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and underwriters or the Holders may reasonably request to holders of a majority in aggregate principal amount of the Registrable Securities being sold agree should be included therein in order relating to permit the intended method plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the principal amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and any other terms of the underwritten (or best efforts underwritten) offering of the Registrable SecuritiesSecurities 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 promptly following notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiif) furnish to each selling Holder holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request if requested, at least one signed copy 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);
(ixg) deliver to each selling Holder holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, if requested, as many copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents Registrants consent to the use of such the Prospectus or any amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the 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;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, 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 each state and other jurisdiction of the United States such jurisdictions as any selling Holder such seller or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the such Registrable Securities covered by the Registration StatementSecurities; provided that the Company Registrants 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 or would subject the Registrants to taxation in any jurisdiction if they are not now so subject;
(xii) in connection cooperate with any sale the selling holders 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 such Registrable Securities to be sold and not bearing any restrictive Securities Act legendslegends (unless required by applicable securities laws); and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of such Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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 all 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;
(xiiik) subject to Section 5(b) hereof, upon the occurrence of any event contemplated by paragraph (c)(6) above, use all reasonable efforts to prepare a supplement or post-effective amendment to the related 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 holders 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) use their reasonable best efforts to cause all Registrable Securities covered by a Registration Statement to be listed on each securities exchange on which similar securities issued by the Registrants are then listed;
(m) cause the Registrable Securities covered by a Registration Statement to be rated with such rating agencies as the holders of a majority in aggregate principal amount of such Registrable Securities or the managing underwriters, if any, may designate;
(n) not later than the effective date of the applicable Registration StatementShelf Registration, provide a CUSIP number for all Registrable Securities and provide the applicable Exchange Note Indenture trustee or transfer agent with printed certificates for the Registrable Securities which are 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;
(xivo) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the case disposition of such Registrable Securities and in such connection, whether or not an Underwritten Offeringunderwriting 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; (2) obtain for delivery opinions of counsel to the Registrants 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 such Registrable Securities) addressed to the each selling Holders holder and the underwriter or underwriters, an opinion 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 "comfort" letters and updates thereof from the Company’s outside counsel Registrants' independent certified public accountants addressed to such holders and underwriters, if any, such letters to be in customary form and content for covering matters of the type customarily covered in "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 Underwritten Offering, dated Section 7 hereof with respect to all parties to be indemnified pursuant to Section 7; and (5) deliver such documents and certificates as may be requested by the date 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 Registrants. The above shall be done at each closing under such underwriting or similar agreement or as and to the underwriting agreementextent required thereunder;
(xvp) make available at reasonable times for inspection by one or more representatives of the selling holders of Registrable Securities, designated in writing by a majority of such selling holders, any underwriter participating in any distribution of such Registrable Securities pursuant to a Shelf Registration, and any attorney or accountant retained by such selling holders or any of the case underwriter(s), all financial and other records, pertinent corporate documents and properties of an Underwritten Offeringthe Registrants as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, obtain for delivery and cause the Registrant's officers, directors, managers and employees to and addressed to supply all information reasonably requested by any such representative or representatives of the underwriter selling holders, underwriter, attorney 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 accountant in connection with quarterly period financial statements if applicablethe Shelf Registration after the filing thereof and before its effectiveness; provided, dated however, that any information designated by the date Registrants as confidential at the time of execution delivery of such information shall be kept confidential by the underwriting agreement and brought down recipient thereof; provided further, that in no event shall the Registrants be required to the closing under the underwriting agreement;furnish any material nonpublic information pursuant to this subsection (p).
(xviq) otherwise use its reasonable their 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 StatementSEC;
(xviir) provide and cause the Exchange Note Indenture to be maintained a transfer agent and registrar qualified under the TIA, provide an indenture trustee for all each of the Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of the Shelf Registration, and in connection therewith, cooperate with the trustee under the Exchange Note Indenture and the holders of the Exchange Notes to effect such Registration Statement;
(xviii) cause all Registrable Securities covered by changes to the applicable Registration Statement Exchange Note Indenture as may be required for the Exchange Note Indenture to be listed on each securities exchange on which any so qualified in accordance with the terms of the Company’s Common Stock are then listed or quoted TIA and on each inter-dealer quotation system on which any of the Company’s Common Stock are then quotedexecute, including the filing of any and use all reasonable efforts to cause such trustee to execute, all documents as may be required supplemental listing application;
(xix) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to effect such changes and all other forms and documents required to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary SEC to enable the Company to comply with the provisions of this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thExchange Note
Appears in 1 contract
Sources: Debt Registration Rights Agreement (L 3 Communications Corp)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities Company's registration obligations pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 2 hereof, the Company shall will use reasonable its best efforts to effect or cause the Registration and such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Company will use its best efforts to, as expeditiously as possible:
(ia) prepare and file with the required SEC, as soon as practicable, and in any event within 60 days from the date of request, a Registration Statement, including all exhibits and financial statements required Statement relating to the applicable registration on any appropriate form under the Securities Act to Act, which form shall be filed therewithavailable for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all required financial. statements of the Company, and use its best efforts to cause such Registration Statement to become effective; provided that before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) including documents incorporated by reference after the initial filing of the Registration Statement, the Company will' furnish to the Holders of Registrable Securities being registered on such Registration Statement and the underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating the Holders and their respective counselthe underwriters, if any, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto (Bincluding such, documents incorporated by reference) consider to which the Holders holding the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object (except in good faith any comments the case of the underwriters and Holders and their respective counsel on such documentsa filing pursuant to Section 2(b) hereof);
(iib) prepare and file with the SEC such amendments, supplements and post-effective amendments and supplements to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the applicable period, which as to any Registration Statement, shall not exceed two years, or such shorter period which will terminate when all Registrable Securities included in such Registration Statement effective in accordance with have been sold; cause the terms of this Agreement 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 all securities included in such Registration Statement during the Securities Act applicable period in accordance with respect the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the disposition Prospectus. The Company shall not be deemed to have used commercially reasonable efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in the Holders not being able to sell their 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 all assets, so long as the Company promptly thereafter complies with the requirements of the Shares Registered thereonSection 4(1) hereof, if applicable;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Persons) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company writing: (A) when the applicable Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective; (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, ; (C) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose; (D) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (m) below cease to be true and correct in all material respects, and correct; (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (F) 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;
(vd) promptly notify each selling Holder and 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, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, underwriters and the Holders may reasonably request to Company agree should be included therein in order relating to permit the intended method of distribution sale of 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 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;
(viiif) furnish to each selling Holder of the Holders holding Registrable Securities covered by the Registration Statement and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements statements, schedules and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)exhibits;
(ixg) deliver to each selling Holder the Holders holding Registrable Securities covered. by the Registration Statement and each underwriter, the underwriters; if any, without charge, as many such reasonable number. of copies of the applicable Prospectus (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use of such the Prospectus or any amendment or supplement thereto by each selling Holder the Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the 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;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each selling Holderthe Holders, 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 each state and other jurisdiction of such jurisdictions as the United States as participating Holders or any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 provided, however, the Company will shall not (i) be required in connection with this Section 4(h) to qualify generally as a foreign corporation or execute a general consent to do business the service of process. in any jurisdiction where it is not then so qualified or to (ii) take any such action which in such jurisdictions that in the good faith opinion of the underwriters would subject it to taxation or general service jeopardize the success of process in any such jurisdiction where it is not then so subjectthe offering by the Company and the Holders holding Registrable Securities;
(xii) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder the participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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 Holders or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities; provided, however, the Company shall not (i) be required in connection with this Section 4(j) to qualify as a foreign corporation or execute a general consent to the service of process in any jurisdiction or (ii) take such. action as to such governmental agencies or authorities that in the good faith opinion of the underwriters would jeopardize the success of the offering by the Company and the Holders holding Registrable Securities;
(xiiik) not later than upon the occurrence of any event contemplated by Section 4(c)(F) above, prepare a supplement or post-effective date 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 applicable Registration StatementRegistrable Securities, provide the Prospectus will not contain an untrue statement of a CUSIP number for all Registrable Securities and provide material fact or omit to state any material fact necessary to make the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemstatements therein not misleading;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviiil) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of similar securities issued by the Company’s Common Stock Company 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 applicationlisted;
(xixm) provide if the registration involves an Underwritten Offering, enter into an underwriting agreement and in connection therewith: (A) each Holder participating make such representations and warranties to the underwriters in the Registrationform, substance and scope as are customarily made by issuers to underwriters in primary Underwritten Offerings; (B) obtain opinions of counsel to the underwriters Company and updates thereof, which opinions of counsel (which termin form, for purposes of this Agreementscope and substance), shall include a Person deemed be reasonably satisfactory to the managing underwriters covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be an underwriter within reasonably requested by the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, underwriters; (C) obtain "cold comfort" letters and updates thereof from the sale or placement agent therefor, if any, 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 in connection with primary Underwritten Offerings; (D) counsel for such underwriters or agentif an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures; and (E) deliver such documents and certificates as may be reasonably requested by the managing underwriters to evidence compliance with clause (A) above and with any attorney, accountant customary conditions contained in the underwriting agreement or other agent agreement entered into by the Company. The above shall be done at each closing under such underwriting agreement or as and to the extent required thereunder;
(n) make available for inspection by a representative of the participating Holders, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by such Holder the participating Holders 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person representative, underwriter, attorney or accountant in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, registration; provided that any such Person gaining access to records, 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 documents that the Company which the Company determines designates in good faith to writing as confidential shall be confidential, and of which determination kept confidential by such Person is notified, Persons unless (x) the release disclosure of such records, information or documents is required by law court or regulation or is requested or required by deposition, interrogatory, requests for information or documents 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretoadministrative order; and
(xxio) take all other customary steps reasonably necessary to effect submit an application for and obtain a CUSIP number for the Registration, offering and sale Registrable Securities being registered with the SEC. The participating Holders agree by acquisition of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind type described in Section 2.04(a)(v)4(c)(F) hereof, such Holder the participating Holders will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s the participating Holders' receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v)4(k) hereof, or until such Holder 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 participating Holders will deliver to the Company (at the Company’s 's expense) ), all copies, other ththan permanent file copies then in the participating Holders' 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 effectiveness of Registration 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 4(c)(F) hereof to the date when the participating Holders shall receive copies of the supplemented or amended prospectus contemplated by Section 4(k) hereof or the Advice.
Appears in 1 contract
Registration Procedures. (aA) In connection with the obligations of the Company with respect to the Resale Registration and/or sale of Registrable Securities Statement pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 2(a) hereof (and subject to Section 3(A)(k) hereof), the Company shall use reasonable best efforts as expeditiously as possible:
(a) (i) on the date of the Filing Notice, mail the Notice and Questionnaire to effect or cause the Registration Holders of Registrable Securities as of such date. Any Person that acquires any Registrable Securities from an Electing Holder in compliance with the applicable provisions of the Indenture (excluding any Registrable Securities that were not identified in the Notice and the sale of Questionnaire delivered by such Electing Holder) will be entitled to have such Registrable Securities included in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Resale Registration Statement so long as such transferee provides the Company with an updated Notice and Questionnaire. If any such Electing Holder's or Prospectus, transferee's Notice and Questionnaire is received on or any amendments or supplements thereto, (A) furnish prior to the underwriters, if any, and fifth business day prior to the Holders participating in Effective Time, such Registration, copies of all documents prepared to be filed, which documents Electing Holder or transferee will be subject entitled to have such Electing Holder's or transferee's Registrable Securities included in the Resale Registration Statement at the Effective Time, provided, however, Holders of Registrable Securities shall have 30 calendar days from the date on which the Notice and Questionnaire is first mailed to such Holders to return a completed and signed Notice and Questionnaire to the review of Company; if such underwriters Electing Holder's or transferee's Notice and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(ii) prepare and file with the SEC such amendments and supplements Questionnaire is received subsequent to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registrationfifth business day, 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement theretoNotice and Questionnaire will be included in the Resale Registration Statement reasonably promptly after receipt (which date of inclusion may be subsequent to the Effective Time), as provided in Section 3(A)(a)(ii) and such other documents below. No Holder shall be entitled to be named as such a selling Holder or underwriter may reasonably request security holder in order to facilitate the disposition Resale Registration Statement as of the Registrable Securities by such Effective Time and no Holder or underwriter;
(x) on or prior shall be entitled to use the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities Prospectus forming a part thereof for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale resales of Registrable Securities that will result in such securities no longer being Registrable Securitiesat any time, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by unless such 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, has returned a completed and each amendment or supplement thereto, signed Notice and to require the insertion therein of material, furnished Questionnaire to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and deadline for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesresponse set forth therein.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Registration Rights Agreement (Nextel Communications Inc)
Registration Procedures. If and whenever the Company is required by the provisions of this Warrant to use to effect the registration of any of the Registrable Shares under the Securities Act, the Company shall:
(a) In connection with furnish to the Registration and/or sale Registered Holder such number of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, copies as the Company Registered Holder shall use reasonable best efforts to effect or cause reasonably request of the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statementprospectus, including all exhibits a preliminary prospectus and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to in conformity with the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments requirements of the underwriters and Holders and their respective counsel on such documentsSecurities Act;
(iib) prepare and file with use its best efforts to register or qualify the SEC such amendments and supplements to such Registrable Shares covered by the Registration Statement and under the Prospectus used securities laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company shall not be required in connection therewith with this subsection 20(b) to qualify as may be necessary a foreign corporation or execute a general consent to keep such Registration Statement effective service of process in accordance with any jurisdiction;
(c) promptly notify the terms of this Agreement 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 provisions requirements of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafterif requested by the Company, prepare the Registered Holder shall immediately cease making offers or sales of Registrable Shares under the Registration Statement and file with the SEC, and furnish without charge return all prospectuses to the selling Company. The Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of the revised prospectuses, the Registered Holder shall be free to resume making offers and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution sales of the Registrable SecuritiesShares; 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;and
(viiid) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of pay the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein expenses incurred by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in complying with its obligations under this Warrant in connection with the offering registration rights, including all registration and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectivefiling fees, use its reasonable best efforts to register or qualifyexchange listing fees, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates expenses for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 preparation of the Registration Statement;
(xvii) provide , prospectus and cause to be maintained a transfer agent any amendments and registrar for all Registrable Securities covered by the applicable Registration Statement from supplements thereto, printing and after a date not later than the effective date photocopy expenses, fees and expenses 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 fees and expenses of accountants for the Company’s officers, employees and but excluding: (i) selling commissions or underwriting discounts incurred by 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 Person Registered Holder in connection with such sales of Registrable Shares under the Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to and (ii) the foregoing, provided that any such 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 fees and expenses 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested counsel retained by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable SecuritiesRegistered Holder.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Registration Procedures. (a) In connection with the Registration and/or sale to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be Registered pursuant to this AgreementAgreement or have initiated a Takedown Offering, through an Underwritten Offering or otherwise, the Company Pubco shall use its reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof andthereof, and pursuant thereto Pubco shall as expeditiously as reasonably possible:
(ia) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the required Commission a Registration Statement, including and all exhibits amendments and financial statements required under the supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities Act and use its reasonable best efforts to be filed therewith, and cause such Registration Statement to become effective (provided that at least two (2) Business Days before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto, (A) Pubco shall furnish to counsel selected by the underwriters, if any, and to the Holders participating in such Registration, Applicable Approving Party copies of all such documents prepared proposed to be filed, which documents will shall be subject to the review and comment of such underwriters and such participating Holders and their respective counsel, and no such document shall be filed with the Commission to which any Investor or its counsel reasonably objects);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, (B) consider in good faith the receipt by Pubco or its counsel of any comments notification with respect to the suspension of the underwriters qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and Holders and their respective counsel on such documents(C) the effectiveness of each Registration Statement filed hereunder;
(iic) prepare and file with the SEC 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 terms intended methods of this Agreement 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 to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and the Prospectus used during such period in connection therewith as may be necessary to keep such Registration Statement effective and to comply accordance with the provisions intended methods of disposition by the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of sellers thereof set forth in such Registration Statement;
(ivd) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm furnish to each seller of Registrable Securities thereunder such advice in writing and provide number of copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesStatement, (D) ifeach amendment and supplement thereto, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such ), each Free-Writing Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder or underwriterseller;
(xe) on 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 prior to 15(d) of the date on which the applicable Registration Statement is declared effective or becomes effective, Securities Act;
(f) use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of qualify such Registrable Securities for offer and sale under the such other securities or “blue sky” sky laws of each state and other jurisdiction of such jurisdictions as the United States as any selling Holder or managing lead underwriter or underwriters, if any, or their respective counsel the Applicable Approving Party reasonably request in writing requests and do any and all other acts or and things which may be reasonably necessary or advisable to keep enable such registration or qualification in effect for so long as such Registration Statement remains in effect and so as seller to permit consummate the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution 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 taxation or general service of process in any such jurisdiction where it is not then so subjector (iii) subject itself to taxation in any such jurisdiction);
(xig) promptly notify in connection with any sale writing each seller of such Registrable Securities that will (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 delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such securities no longer being 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, Pubco 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, cooperate with each selling Holder and such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing statements therein not misleading;
(h) cause all such Registrable Securities to be sold and listed on each securities exchange on which similar securities issued by Pubco are then listed and, if similar securities are not bearing any restrictive Securities Act legends; and 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 in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemwith FINRA;
(xiii) cooperate and assist in any filings if applicable, promptly effect a filing with FINRA pursuant to FINRA Rule 5110 (or successor thereto) with respect to the public offering contemplated by resales of securities under the Resale Shelf Registration Statement (an “Issuer Filing”), pay the filing fee 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, Issuer Filing and use its reasonable best efforts to pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Resale Shelf Registration Statement.
(j) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(k) enter into and perform such customary agreements (including underwriting agreements in customary form) 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 limitation, 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 the underwriters managing such offering may reasonably request);
(l) make available for inspection by a representative of the Applicable Approving Party, 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 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 qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, use its reasonable best efforts promptly to obtain the withdrawal of such order;
(q) use its reasonable best efforts to cause 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiiir) cooperate with the holders of Registrable Securities covered by the Registration Statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not later than 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;
(s) cooperate with each holder of Registrable Securities covered by the Registration Statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(t) if such Registration includes an underwritten public offering, use its reasonable best efforts to obtain a cold comfort letter from Pubco’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such Registration reasonably request;
(u) provide a legal opinion of Pubco’s outside counsel, dated the effective date of the applicable such Registration StatementStatement (and, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct if such Registration System;
(xiv) in the case of includes 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 underwritten Public Offering, dated the date of the closing under the underwriting agreement;
(xv) in the case of an Underwritten Offering), obtain for delivery to and 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 statementsthe 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 content for covering such matters of the type customarily covered by legal opinions of Underwritten Offeringsuch nature, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down which opinion shall be addressed to the closing under the underwriting agreementunderwriters;
(xviv) 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 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 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 (ii) crediting of the Registrable Securities 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, may reasonably request; and
(z) 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 Common Stock; (c) ensure that the transfer agent for the Common Stock is a participant in, and 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 comply with all applicable rules and regulations of cause 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 to not at any time be subject to any DTC “chill,” “freeze” or quoted and on each inter-dealer quotation system on which similar restriction with respect to any of the Company’s Common Stock are then quotedDTC services, including the filing clearing of any required supplemental listing application;
(xix) provide (A) each Holder participating shares of Common Stock through DTC, and, in the Registrationevent the Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed use its reasonable best efforts to cause any such “chill,” “freeze” or similar restriction to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (removed at the Company’s expense) all copies, other thearliest possible time.
Appears in 1 contract
Sources: Exclusive Real Estate Advisory Agreement (CareMax, Inc.)
Registration Procedures. (a) In connection with If and whenever the Registration and/or Company is required to ------------------------ use its commercially reasonable efforts to take action pursuant to any federal or state law or regulation to permit the sale or other disposition of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering that are then held or otherwise, that may be acquired upon exercise of the Company shall use reasonable best efforts Warrants in order to effect or cause the Registration and the sale registration of such any Registrable Securities under the Securities Act as provided in accordance with this Article 2, the intended methods of disposition thereof andCompany shall, as expeditiously as practicable:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC SEC, as soon as practicable within forty-five (45) ays after the end of the period within which requests for registration may be iven to the Company (but subject to the provision for deferral contained in ection 2.2(a) hereof) a Registration Statement or ProspectusRegistration Statements elating to the registration on any appropriate form under the Securities Act, whch form shall be available for the sale of the Registrable Securities in acordance with the intended method or methods of distribution thereof, subject to Section 2.1(e) hereof, and use its commercially reasonable efforts to cause such Registration Statements to become effective; provided that before filing a Registration Statement or Prospectus or any amendments amendment or supplements thereto, (A) including documents incorporated by reference after the initial filing of any Registration Statement, the Company will 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 prepared provided to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsunderwriters;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with for a period of thirty (30) days; cause the terms of this Agreement 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 such period in accordance with the intended methods of disposition by the Shares Registered thereonsellers thereof set forth in such Registration Statement or supplement to such Prospectus;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto has been filed or becomes effectivepost-effective amendment, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective; (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, ; (Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose; (Div) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (m) below cease to be true and correct in all material respects, and ; (Ev) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
, and (vvi) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as that makes any statement of a result material fact made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of which any changes in the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains so that they will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancemisleading;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final Prospectusa Registration Statement at the earliest possible moment;
(viie) promptly if reasonably requested by the managing underwriters, immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to underwriters believe (on advice of counsel) should be included therein in order as required by applicable law relating to permit such sale of Registrable Securities, including, without limitation, information with respect to the intended method of distribution purchase price being paid for the Registrable Securities by such underwriters and with respect to any other terms of the Registrable Securitiesunderwritten (or "best-efforts" underwritten) 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;
(viiif) furnish to each selling Holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request at least one signed copy 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);
(ixg) deliver to each selling Holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, as many copies of the applicable Prospectus or Prospectuses (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use of such Prospectus or any amendment or supplement thereto by each of the selling Holder Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and cooperate with each the selling HolderHolders of Registrable Securities, 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” Blue Sky laws of each state and other jurisdiction of such jurisdictions within the United States as any selling Holder or managing underwriter reasonably requests in writing, keep each such registration or underwriters, if any, or their respective counsel reasonably request in writing 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 keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in any such jurisdiction where it is not then at the time so subject;
(xii) in connection cooperate with any sale the selling Holders of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two (2) Business Days prior to such any sale of Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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 commercially 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 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;
(xiiik) not later than upon the occurrence of any event contemplated by Section 2.3(c)(vi) above, prepare a supplement or post-effective date of the applicable 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 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery amendment 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 or 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 being sold thereunder, such that the Prospectus will not contain an untrue statement of a date material fact or omit to state any material fact necessary to make the statements therein not later than misleading in the effective date light of such Registration Statementthe circumstances under which they were made;
(xviiil) with respect to each issue or class of Registrable Securities, use its commercially reasonable efforts to 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)exchange, if any, on which similar securities issued by the Company are then listed if requested by the Holders of a majority of such issue or class of Registrable Securities;
(m) enter into such agreements (including an underwriting agreement) and take all such other action reasonably required in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, if the registration is in connection with an underwritten offering (i) make such representations and warranties to the underwriters, in such 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 underwriters) addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters; (iii) obtain "cold comfort" letters and updates thereof from the Company's 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 underwriters in connection with underwritten offerings; (iv) set forth in full in any underwriting agreement entered into the indemnification provisions and procedures of Section 2.4 hereof with respect to all parties to be indemnified pursuant to said Section; and (v) deliver such documents and certificates as may be reasonably requested by the underwriters to evidence compliance with clause (i) 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 hereunder;
(n) make available for inspection by one or more representatives of the Holders of Registrable Securities being sold, any underwriter participating in any disposition pursuant to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agentregistration, and (E) any attorney, attorney or accountant or other agent or representative retained by such Holder Holders 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person representatives, in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related theretosuch; and
(xxio) otherwise use its commercially reasonable efforts to comply with all applicable federal and state regulations; and take all such other customary steps action as may be reasonably necessary to effect or advisable to enable each such Holder and each such underwriter to consummate the Registration, offering and sale of or disposition in such jurisdiction or jurisdiction in which any such Holder or underwriter shall have requested that the Registrable Securities.
(b) As a condition precedent to any Registration hereunderSecurities 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 selection of underwriters, and the distribution of any preliminary Prospectus included in the Registration Statement, and may include within the coverage thereof additional shares of Common Stock or other securities for its own account or for the account of one or more of its other security holders. The Company may require each Holder seller of Registrable Securities 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 as may otherwise be required by the Securities Act to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request be included in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thStatement.
Appears in 1 contract
Sources: Warrant Agreement (S3 Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement and the Merger Agreement, the Company will as expeditiously as possible and without limiting any time period set forth elsewhere in this Agreement:
(a) Subject to the requirements to file the Registration Statement on Form S-4 pursuant to the Merger Agreement, prepare and file with the SEC a Registration Statement with respect to such Registrable Securities on a form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of such the Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewithdistribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective as promptly as practicable after filing and to keep such Registration Statements effective as provided in Section 3; provided that, a reasonable time before filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments or supplements theretothereto (other than reports required to be filed by it under the Exchange Act and the rules and regulations adopted by the SEC thereunder), (A) the Company will furnish to the underwriters, if any, Holders of Registrable Securities covered by such Registration Statement and to the Holders participating in such Registration, their counsel for review and comment copies of all documents prepared proposed to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(iib) prepare and file with the SEC amendments and post-effective amendments to each such Registration Statement and such amendments and supplements to such Registration Statement and 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 for shelf registration or otherwise necessary to keep such Registration Statement effective in accordance with for the terms of this Agreement applicable period and cause the Prospectus 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 covered by such Registration Statement until such time as all of the Shares Registered thereon;
(iii) such securities have been disposed of in the case of a Shelf Registration, prepare and file accordance with the SEC such amendments and supplements to intended methods of disposition set forth in such Registration Statement and the Prospectus used in connection therewith as may be necessary Prospectus;
(c) furnish to keep 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), the Prospectus and Prospectus supplement, as applicable, and such other documents as such Holder may reasonably request in order to comply with the provisions of the Securities Act with respect to facilitate the disposition of all Shares the Registrable Securities by such Holder (the Company hereby consenting to the use (subject thereto for a period ending on to the 3rd anniversary after limitations set forth in the effective date last paragraph of such Registration Statement;
(ivthis Section 7) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 thereto in connection with such disposition);
(d) use its 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 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 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 the 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 covered by such Registration Statement at any 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,
(B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such the Registration Statement or such the Prospectus or for additional information, and of any comments, oral or written, by the SEC with respect thereto,
(C3) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, that purpose,
(D4) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (i)(1) below cease to be true and correct in all material respectscorrect, and and
(E5) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(vg) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC SEC, and make generally available to its security holders, as soon as reasonably practicable, practicable (but no later not more than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing eighteen months) after the effective date of the applicable Registration Statement, an earnings statement satisfying which shall satisfy 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 Statementthereunder;
(xviih) provide and cause all such Registrable Securities to be maintained listed on any securities exchange on which the 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 agent, CUSIP number and registrar for all such Registrable Securities covered by the applicable such Registration Statement from and after a date not no later than the effective date of such Registration Statement;
(xviiii) cause enter into agreements (including underwriting agreements) and take all other appropriate actions in order to expedite or facilitate the disposition of such Registrable Securities covered by and in such connection, whether or not an underwriting agreement is entered into and whether or not 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;registration is an Underwritten Offering:
(xix1) provide (A) each Holder participating in make such representations and warranties to the RegistrationHolders of such Registrable Securities, (B) limited, as to such Holders, to the underwriters (which termextent such representations and warranties are based solely on representations and warranties made by such Holders, for purposes of this Agreement, shall include a Person deemed to be an underwriter within and the meaning of Section 2(11) of the Securities Act)underwriters, if any, and agree to such indemnification and contribution agreements, in form, substance and scope as are customarily made by issuers to underwriters in comparable underwritten 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 underwriters, if any, the Holders of the Registrable Securities being sold) addressed to be Registered, (C) each such Holder and the sale or placement agent thereforunderwriters, if any, (D) counsel for covering the matters customarily covered in opinions requested in comparable underwritten offerings and such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, matters 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 each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities Holders 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 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thunderwriters;
Appears in 1 contract
Sources: Registration Rights Agreement (Central Parking Corp)
Registration Procedures. (a) In connection with Whenever the Registration and/or sale Company is required by the provisions of Registrable Section 4 to effect the registration of any Shares and the Earnout Shares under the Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseAct, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof andwill, as expeditiously as possible:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(iia) prepare and file with the SEC Commission such pre-effective and post-effective amendments and supplements to such the Registration Statement and the Prospectus Earnout Registration Statement, and the prospectuses used in connection therewith therewith, and/or file such reports under the Exchange Act, as may be necessary to keep such cause the Registration Statement and the Earnout Registration Statement to become effective, to keep the Registration Statement and the Earnout Registration Statement continuously effective in accordance with during the terms of this Agreement Distribution Period and the Earnout Distribution Period, and as may otherwise be required or applicable under, and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon;
(iii) in the case of a Shelf Registrationof, 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 Shares subject covered by the Registration Statement during the Distribution Period and the disposition of all Earnout Shares covered by the Earnout Registration Statement during the Earnout Distribution Period;
(b) furnish to Shareholder such number of copies of the Registration Statement, the Earnout Registration Statement and each such amendment and supplement thereto for a period ending on (in each case including exhibits), the 3rd anniversary after prospectus included therein (including each preliminary prospectus) and such other documents as such person reasonably may request in order to facilitate the effective date public sale or other disposition of such the Shares covered by the Registration Statement and the Earnout Shares covered by the Earnout Registration Statement;
(ivc) notify register or qualify the participating Holders Shares covered by the Registration Statement and the managing underwriter Earnout Shares covered by the Earnout Registration Statement under the securities or underwriters, if any, and (if requested) confirm such advice in writing and provide copies “blue sky” laws of the relevant documentsjurisdictions where the Company is currently registered or qualified, provided, however, that the Company shall not for any such purpose be required to qualify generally to transact business as soon as reasonably practicable after notice thereof a foreign corporation in any jurisdiction where it is received not so qualified or to consent to general service of process in any such jurisdiction;
(d) have the Shares covered by the Company Registration Statement and the Earnout Shares covered by the Earnout Registration Statement subject to quotation on the Nasdaq Global Market or listed on any exchange on which shares of Common Stock are traded;
(Ae) when promptly notify Shareholder (at its last known addresses) (i) of the applicable effective date of the Registration Statement or the Earnout Registration Statement and the date when any post-effective amendment thereto has been filed to the Registration Statement or the Earnout Registration Statement becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending or notification from the effectiveness of such Registration Statement Commission or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect other jurisdiction as to the suspension of the qualification effectiveness of the Registrable Securities for offering or sale in any jurisdiction Registration Statement or the initiation Earnout Registration Statement, or threatening (iii) of the end of any proceeding for such purposesuspension under Section 6;
(vf) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware Shareholder of the occurrence happening of any event as a result of which the applicable Registration Statement or the Prospectus prospectus included in such Registration Statement (or the Earnout Registration Statement, as then in effect) contains any , includes an untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein (not misleading in the case light of the circumstances then existing, and at the request of the Shareholder prepare and furnish to the Shareholder a reasonable number of copies of a supplement to or an amendment of such Prospectus and any preliminary Prospectusprospectus as may be necessary so that, as thereafter delivered to the purchasers of such shares, 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 under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesexisting.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Registration Rights Agreement (Transwitch Corp /De)
Registration Procedures. (a) In connection with the Company's Registration and/or sale of Registrable Securities obligations pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 3.1 hereof, the Company shall will use reasonable its best efforts to effect or cause the Registration and such ----------- registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Company will, as expeditiously as possible:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or ProspectusRegistration Statements relating to each 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 (i) all financial statements (including, if applicable, financial statements of any Person which shall have guaranteed any indebtedness of the Company) required by the SEC to be filed therewith, (ii) a prospectus that relates to earlier Registration Statements filed pursuant to Section 3 hereof, as permitted by Rule 429 under the Securities Act, if --------- requested by the Agent or a majority of the holders of the Registrable Securities being registered and (iii) if the sale is by means of an underwritten offering, any other information that the managing underwriter reasonably believes to be of material importance to the success of such offering, 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 as far in advance as practical before filing a Registration Statement or any amendments or supplements thereto, (A) the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement, holders of Warrants and the underwriters, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of by such underwriters holders and such participating Holders and their respective counselunderwriters, and (B) consider in good faith the Company will not file any comments Registration Statement or any amendments or supplements thereto to which the holders of a majority of the underwriters Registrable Securities and Holders and their respective counsel on Warrants or such documentsmanaging underwriters, if any, shall reasonably object within 14 days;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement effective in accordance with have been sold or cease to be Registrable Securities; cause any Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the terms of this Agreement Securities Act; and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Shares Registered thereonsellers thereof set forth in such Registration Statement or supplement to the Prospectus;
(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 effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(ivc) notify the participating Holders selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (A1) when the applicable any Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B2) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such any Registration Statement or such any Prospectus or for additional information, (C3) of the issuance by the SEC of any stop order of which the Company or its counsel is aware suspending the effectiveness of such any Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D4) if, if at any time, time the representations and warranties of the Company in any applicable underwriting agreement contemplated by paragraph (n) below cease to be true and correct in all any material respectsrespect, and (E5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
purpose and (v6) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of Company's becoming aware that any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (including any document incorporated therein by reference), as then in effect) contains any , 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 (in the case of such Prospectus and any preliminary Prospectus, not misleading in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliancethen existing;
(vid) use its make every reasonable best efforts effort to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of any preliminary or final ProspectusRegistration Statement at the earliest possible moment;
(viie) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and underwriter or underwriters or the Holders may reasonably request to holders of a majority of the Registrable Securities being sold agree should be included therein in order relating to permit the intended method plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the amount of Registrable Securities being sold to such managing underwriter or underwriters, the purchase price being paid therefor by such underwriters and any other terms of the underwritten (or best efforts underwritten) offering of the Registrable SecuritiesSecurities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon promptly as reasonably practicable after upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiif) furnish to each selling Holder holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request if requested, at least one signed copy 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);
(ixg) deliver to each selling Holder holder of Registrable Securities and each underwriterthe underwriters, if any, without charge, if requested, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter Persons may reasonably request (it being understood that request; the Company consents to the use (subject to the limitations set forth in the last paragraph of such this Section 5) of the Prospectus or any amendment or supplement thereto by --------- each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the Prospectus or any amendment or supplement thereto) and thereto until such other documents time as such the Company has notified the selling Holder or underwriter may reasonably request in order to facilitate the disposition holders of the Registrable Securities by such Holder or underwriterto discontinue the use thereof pursuant to paragraph (c)(6);
(xh) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany Public Offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling Holderholders of Registrable Securities, 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 each state and other jurisdiction of the United States such jurisdictions as any selling Holder such seller or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the such Registrable Securities covered by the Registration StatementSecurities; 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 or taxation in any such jurisdiction where it is not then so subject;
(xii) in connection cooperate with any sale the selling holders 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 such Registrable Securities to be sold and not bearing any restrictive Securities Act legends, except as provided for in the Warrant Agreement; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, managing underwriters may request at least two Business Days business days prior to such any sale of such Registrable Securities; provided that Securities to the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration Systemunderwriters;
(xiij) 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;
(xiiik) upon the occurrence of any event contemplated by paragraph (c)(6) above, promptly prepare a supplement or post-effective amendment to the related 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 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 in light of the circumstances then existing;
(l) use its best efforts to cause all Registrable Securities covered by a Registration Statement to be listed on each securities exchange on which securities of the same class issued by the Company are then listed;
(m) not later than the effective date of the applicable any Registration Statement, provide a CUSIP number for all Registrable Securities covered by such Registration Statement and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xivn) if the selling holders intend to distribute the Registrable Securities through an underwritten offering, enter into such agreements (including an underwriting agreement) and take all such other appropriate and reasonable actions in connection therewith in order to expedite or facilitate such disposition of such Registrable Securities and in such connection, (1) make such representations and warranties to the case holders of an Underwritten Offeringsuch Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in secondary underwritten offerings; (2) obtain for delivery opinions of counsel to the Company (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) addressed to the each selling Holders holder and the underwriter or underwriters, an opinion if any, covering the matters customarily covered in opinions requested in underwritten offerings; (3) obtain "cold comfort" letters and updates thereof from the Company’s outside counsel 's independent certified public accountants addressed to such holders and underwriters, if any, such letters to be in customary form and content for covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if permitted by the managing underwriter the same shall set forth in full the indemnification provisions and procedures of Underwritten OfferingSection 7 hereof with respect to all parties to be indemnified --------- pursuant to said Section; provided that unless the selling holders of Registrable Securities otherwise agree, dated the date indemnification provisions and procedures set forth in such underwriting agreement shall be no less favorable to the selling holders of Registrable Securities and the underwriters than the indemnification provisions and procedures of Section 7 hereof; 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 paragraph (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 underwriting agreementextent required thereunder;
(xvo) make available for inspection by any holder of Registrable Securities or any underwriter participating in any disposition of Registrable Securities pursuant to a Shelf Registration, and any attorney or accountant retained by such holders or underwriters, if any, all financial and other records, pertinent corporate documents and properties of the case Company as may be reasonably necessary to enable them to exercise their due diligence responsibilities, and provide reasonable access to appropriate officers of an Underwritten Offering, obtain for delivery to and 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 Company in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreementsuch due diligence responsibilities;
(xvip) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and SEC; and
(q) make generally appropriate officers of the Company 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 such holders and underwriters for meetings 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, prospective purchasers of the Registrable Securities and prepare and present to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the potential investors customary “"road show” presentations that may be reasonably requested by the managing underwriter or underwriters " material in any Underwritten Offering and otherwise a manner consistent with other new issuances of other securities similar to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the . The Company may require each Holder seller of Registrable Securities 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 of Registrable Securities agrees by acceptance of 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 this Agreement.
(c) Each Holder agrees, Registrable Securities that, upon receipt of any written notice from the Company of the occurrence happening of any event of the kind described in Section 2.04(a)(v5(c)(3), (5) or (6) --------------- --- --- hereof, 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 2.04(a)(v)5(k) hereof, or until such Holder it is advised ------------ in writing (the "Advice") by the Company that the use of the such Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in such Prospectus, and, if so directed by the Company, Company such Holder holder will deliver to the Company (at the Company’s 's expense) all copies, other ththan permanent file copies then in such holder's possession, of such Prospectus covering such Registrable Securities current at the time of receipt of such notice.
Appears in 1 contract
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, If and whenever the Company shall is required by the provisions of this Agreement to use reasonable its best efforts to effect or cause the Registration and registration of any of the sale of such Registrable Shares under the Securities in accordance with Act, the intended methods of disposition thereof andCompany shall:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC Commission a Registration Statement or Prospectus, or any amendments or supplements thereto, with respect to such Registrable Shares and use its best efforts to cause that Registration Statement to become and remain effective for the period specified in paragraph (Ab) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsbelow;
(iib) as expeditiously as possible prepare and file with the SEC such Commission any amendments and supplements to such the Registration Statement and the Prospectus used prospectus included in connection therewith the Registration Statement as may be necessary to keep such the Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all 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 and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after earlier of (i) the effective date first Anniversary of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if anyClosing Date, and (if requestedii) confirm the date on which all Registrable Shares registered under such advice in writing and provide copies of the relevant documentsRegistration Statement have been sold; provided, as soon as reasonably practicable after notice thereof is received by however, that the Company may by written notice require that each Rightsholder (a "Selling Holder") who is selling shares pursuant to such registration immediately cease sales of shares pursuant to such Registration Statement (a "Black Out Requirement") at any time that (A) when the applicable Company becomes engaged in a business activity or negotiation which is not disclosed in the Registration Statement (or any amendment thereto has been filed the prospectus included therein) which the Company reasonably believes must be disclosed therein under applicable law and which the Company desires to keep confidential for business purposes, the disclosure of which at such time the Company believes could have an adverse effect on the Company or becomes effective, its business or when prospects or on the applicable Prospectus successful completion of such business activity or any amendment negotiation or supplement to such Prospectus has been filedon the market price of the Company's stock, (B) the Company believes that a particular disclosure so determined to be required to be disclosed therein would be premature or would adversely affect the Company or its business or prospects or the market price of any written comments by the SEC Company's stock, or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending can no longer be used under the use of any preliminary or final Prospectus or existing rules and regulations promulgated under the initiation or threatening of any proceedings for such purposesSecurities Act; provided further, (D) if, at any time, the representations and warranties of that the Company shall not impose a Black Out Requirement if such requirement would result in the Resale Registration Statement being effective and not subject to any applicable underwriting agreement cease to be true Black Out Requirement for less than 53 calendar days (whether or not consecutive) during the period commencing on the Release Date and correct in all material respectsending on December 31, and (E) of the receipt by the Company of any notification 1997 unless, with respect to a Selling Holder, such Selling Holder (I) has been, or will prior to December 31, 1997 be, provided with an opportunity to sell in an underwritten offering a number of shares of Common Stock which, when taken together with any shares of Common Stock sold by the Selling Holder prior to the commencement of such Black Out Requirement, equals at least 55% of the shares of Common Stock acquired by the Selling Holder pursuant to the Purchase Agreement (the "Minimum Number of Shares") or (II) has sold, prior to the commencement of such Black Out Requirement, the Minimum Number of Shares. The Company shall not be required to disclose to the Selling Holder(s) the reasons for requiring a suspension of sales hereunder, and the qualification of Selling Holder(s) shall not disclose to any third party the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening existence of any proceeding for such purposesuspension;
(vc) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (expeditiously as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) possible furnish to each selling Selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request reasonable numbers 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);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (prospectus, including each a preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if anyprospectus, in connection conformity with the offering and sale requirements of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) Act, and such other documents as such selling the Selling Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such Holder or underwriter;the Selling Holder; and
(xd) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, as expeditiously as possible use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, qualify the managing underwriter or underwriters, if any, and their respective counsel, in connection with Registrable Shares covered by the registration or qualification of such Registrable Securities for offer and sale Registration Statement under the securities or “blue sky” Blue Sky laws of each state and other jurisdiction of such states as the United States as any selling Holder or managing underwriter or underwritersSelling Holders shall reasonably request, if any, or their respective counsel reasonably request in writing and do any and all other acts or and things that may reasonably be necessary or advisable desirable to keep such registration enable the Selling Holders to consummate the public sale or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of sales and dealings other disposition in such jurisdictions of the United States for so long as may be necessary to complete the distribution states of the Registrable Securities covered Shares owned by the Registration StatementSelling Holders; provided provided, however, that the Company will shall not be required in connection with this paragraph (d) 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that jurisdiction. If the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 has delivered preliminary 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed final prospectuses to the selling Selling Holders and after having done so 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts prospectus is amended 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) requirements of the Securities Act), the Company shall promptly notify the Selling Holders and, if anyrequested, the Selling Holders shall immediately cease making offers of Registrable Shares and return all undistributed prospectuses to the Company. The Company shall promptly provide the Selling Holders with revised prospectuses and, following receipt of the revised prospectuses, the Selling Holders shall be free to resume making offers of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable SecuritiesShares.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Registration Rights Agreement (Security Dynamics Technologies Inc /De/)
Registration Procedures. (a) In connection with the Registration and/or sale obligations of the Company to effect or cause the registration of any Registrable Securities pursuant to the terms and conditions of this Agreement, through an Underwritten Offering or otherwise, the Company shall use its reasonable best business efforts to effect or cause the Registration registration and the sale of such Registrable Securities in accordance with the intended methods method of disposition distribution thereof andas quickly as practicable, and in connection therewith:
(ia) The Company shall prepare and file with the required Commission a Registration StatementStatement on the appropriate form under the Securities Act, including which form shall comply as to form in all exhibits materials respects with the requirements of the applicable form and include all financial statements required under by the Securities Act Commission to be filed therewith, and before filing use its reasonable business efforts to cause such Registration Statement to become effective and remain effective in accordance with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies provisions of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;this Agreement.
(iib) The Company shall promptly prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with for as long as such registration is required to remain effective pursuant to the terms of this Agreement hereof; shall 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 shall comply with the provisions of the Securities Act applicable to it with respect to the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Shares Registered thereonHolders set forth in such Registration Statement or supplement to the Prospectus;
(iiic) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements The Company shall promptly furnish to such Registration Statement any Holder and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and the managing underwriter or underwriters, if any, without charge, such number of conformed copies of each Registration Statement and (if requested) confirm any post-effective amendment thereto and such advice in writing and provide number of copies of the relevant documentsProspectus (including each preliminary Prospectus) and any amendments or supplements thereto, any documents incorporated by reference therein and such other documents as soon such Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities being sold by such Holder.
(d) The Company shall, on or prior to the date on which a Registration Statement is declared effective, (i) use its reasonable business efforts to register or qualify the Registrable Securities covered by such Registration Statement under such other securities or "blue sky" laws of such states of the United States as any Holder or underwriter requests; (ii) do any and all other acts and things which may be necessary or advisable to enable such Holder to consummate the disposition of such Registrable Securities owned by such Holder; (iii) use its reasonable business efforts to keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective in accordance with the provisions of this Agreement; and (iv) do any and all other acts or things reasonably practicable after notice thereof is received by necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities; provided, however, that the Company shall not be required (Ax) to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(d), (y) to file any general consent to service of process, or (z) to subject itself to taxation in any jurisdiction where it would not otherwise be subject to taxation.
(e) The Company shall cause the Registrable Securities covered by a 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 Holders to consummate the disposition of such Registrable Securities.
(f) The Company shall promptly notify each Holder, Holders' counsel and any underwriter in writing, (i) when the applicable a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC Commission or any other Governmental Authority state securities authority for amendments or and supplements to such a Registration Statement or such and Prospectus or for additional informationinformation after the Registration Statement has become effective, (Ciii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (Div) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, (v) if, at between the effective date of a Registration Statement and the closing of any timesale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any applicable underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the offering cease to be true and correct in all material respects, and (Evi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence happening of any event as which makes any statement made in a result of which the applicable Registration Statement or related Prospectus untrue or which requires the Prospectus included making of any changes in such Registration Statement (as then in effect) contains or Prospectus so that they will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectustherein, in light of the circumstances under which they were made) , not misleading ormisleading. Immediately following expiration of any Suspension Period, if for any other reason it the Company 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 SECCommission and furnish a supplement or amendment to such 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 to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Company shall make generally available to the Holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 45 days (90 days in the event it relates to a fiscal year) after the end of the 12-month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12-month period, and furnish without charge which requirement will be deemed to be satisfied if the selling Holder Company timely files complete and accurate information on forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(h) The Company shall promptly use its reasonable business efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement, and if one is issued use its reasonable business efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment.
(i) The Company shall, if requested by the managing underwriter or underwriters, if any, an amendment Holders' counsel, or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) Holder promptly incorporate in a Prospectus supplement or post-effective amendment such information as the such managing underwritersunderwriter or underwriters reasonably requests, if anyor Holders' counsel reasonably requests, and the Holders may reasonably request to be included therein in order therein, including, without limitation, with respect to permit the intended method Registrable Securities being sold by such Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of distribution an underwritten offering of the Registrable Securities; Securities to be sold in such offering, and promptly make all required filings of such Prospectus supplement or post-effective amendment amendment.
(j) The Company shall, as soon promptly as reasonably practicable after being notified filing with the Commission any document which 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 of the matters Holders and to be incorporated in such Prospectus supplement or post-effective amendment;Holders' counsel.
(viiik) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the The Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection shall cooperate with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing Registrable Securities securities sold under a Registration Statement, and enable such securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and registered in such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 managing underwriter or underwriters, if any, or such Holders may reasonably request and keep available and make available to consummate the disposition Company's transfer agent prior to the effectiveness of such Registrable Securities;Registration Statement a supply of such certificates.
(xiiil) not later than the effective date of the applicable Registration StatementThe Company shall enter into such customary agreements (including, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the an underwriting agreement in customary form) and brought down to take such other actions as the closing under Holders or 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 underwriters retained 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 Holders participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act)underwritten public offering, if any, may reasonably request in order to expedite or facilitate the disposition of the Registrable Securities Securities.
(m) The Company shall promptly make available to be Registeredeach Holder, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agentany underwriter participating in any disposition pursuant to a Registration Statement, and (E) any attorney, accountant or other agent or representative retained by any such Holder or any such underwriter, as selected by such Holderunderwriter (collectively, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above"Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to (collectively, the Company"Records"), and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be reasonably necessary to enable them to exercise their due diligence responsibility, subject and cause the Company's officers, directors and employees to the foregoing, provided that supply all information reasonably requested by any such Person gaining access 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 such 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 paragraph (1) if the Company believes, after consultation with counsel for the Company and counsel for the Holders, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or personnel pursuant to this Section 2.04(a)(xix(2) shall agree to use reasonable efforts to protect the confidentiality of any information regarding if either (i) the Company which has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (ii) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Holder of Registrable Securities requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(n) In the case of any underwritten public offering, the Company shall furnish to each Holder and to each underwriter a signed counterpart, addressed to such Holder 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 type customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter therefor reasonably requests.
(o) The Company shall cause the shares of Common Stock included in a Registration Statement to be confidential, and of listed on the American Stock Exchange or such other securities exchange on which determination such Person is notified, unless similar securities issued by the Company are then listed.
(xp) The Company shall provide a CUSIP number for all Registrable Securities covered by a Registration Statement not later than the release effective date of such information Registration Statement.
(q) The Company shall cooperate with each Holder and each underwriter participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. ("NASD").
(r) The Company shall, during the period when the Prospectus is required by law to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or regulation or is requested or required by deposition, interrogatory, requests 15(d) of the Exchange Act.
(s) The Company shall appoint a transfer agent and registrar for information or documents all the shares of Common Stock covered 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 Registration Statement not later than the Company or (z) effective date of such information is independently developed by such Person;Registration Statement.
(xxt) to cause the executive officers of In connection with an underwritten offering, the Company will participate, to participate in the customary “road show” presentations that may be extent reasonably requested by the managing underwriter for the offering or underwriters the Holders, in any Underwritten Offering and otherwise customary efforts to facilitatesell the securities under the offering, cooperate withincluding without limitation, and participate participating in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities"road shows.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th"
Appears in 1 contract
Sources: Registration Rights Agreement (Key Energy Group Inc)
Registration Procedures. (a) In connection with the Registration and/or sale registration obligations of Registrable Securities pursuant to this Agreementthe Company under Sections 3, through an Underwritten Offering or otherwise4 and 5, the Company shall:
(a) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities on any registration form adopted by the SEC for which the Company then qualifies or which counsel for the Company shall use reasonable best efforts to effect or cause the Registration deem appropriate, and which form shall be available for the sale of such the Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewithdistribution thereof, and before use reasonable best efforts to cause such Registration Statement to become and remain effective; provided that, at least five Business Days prior to filing with the SEC a Registration Statement or Prospectus, Prospectus or any amendments amendment or supplements supplement thereto, (A) the Company shall furnish to the underwriters, if any, and to a single counsel selected by the Holders participating of a Majority of the Registrable Securities included or to be included in such Registration, Registration Statement copies of all documents prepared such 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 underwriters counsel and the Holders of the Registrable Securities included or to be included in such participating Holders and their respective counselRegistration Statement during such five-Business-Day period, and the Company shall not file any Registration Statement, any Prospectus or any amendment or supplement thereto (Bor any such documents incorporated by reference) consider containing any statements with respect to any such Holder to which such Holder shall reasonably object in good faith any comments of the underwriters and Holders and their respective counsel on such documentswriting;
(iib) prepare and file with the SEC amendments and post-effective amendments to such Registration Statement and such amendments and supplements to such Registration Statement and 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 such Registration Statement effective until the earlier of (i) the date on which the Registrable Securities covered by such Registration Statement cease to be Registrable Securities or have been sold or withdrawn and (ii) subject to Sections 9(e) and 9(k), (x) in accordance 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 terms sale of this Agreement Registrable Securities by an underwriter or dealer, and cause the Prospectus as so amended and supplemented to be filed pursuant to Rule 424 under the Securities Act, and otherwise use reasonable best efforts to comply with the provisions of the Securities Act with respect to the disposition of all of securities covered by such Registration Statement until such time as is specified in clause (i) or (ii) above, as the Shares Registered thereoncase may be;
(iiic) in the case furnish to each Holder of a Shelf Registration, prepare and file with the SEC such amendments and supplements to Registrable Securities such number of copies of such Registration Statement and the of each amendment and post-effective amendment thereto, any Prospectus used or Prospectus supplement and such other documents as such Holder may reasonably request in connection therewith as may be necessary order to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to facilitate the disposition of all Shares the Registrable Securities by such Holder (the Company hereby consenting to the use (subject thereto for a period ending on to the 3rd anniversary after the effective date of such Registration Statement;
(ivlimitations set forth in Section 10(b)) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 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 Section 9(b), that the Company has become aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of 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 (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 Prospectus has been filedHolder, (B) as soon as reasonably practicable, without charge to such Holder, a reasonable number of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements 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 purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or for additional informationomit 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 extend the period during which such Registration Statement shall be maintained effective (Cincluding the periods referred to in Section 9(b)) by the number of days in the Section 9(e) Period;
(f) promptly notify each Holder of Registrable Securities covered by such Registration Statement at any time,
(i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to the Registration Statement or any post-effective amendment, when the Registration Statement or such post-effective amendment has become effective;
(ii) of the issuance by the SEC of any stop order of which the Company is aware suspending the effectiveness of such the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus a related Prospectus, or the initiation or threatening of any proceedings for such purposes, ; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiii) 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 offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(vg) promptly notify each selling Holder make available to its stockholders, as soon as reasonably practicable, an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act, provided that the Company shall be deemed to have complied with this Section 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 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 underwritersunderwriters or agents, if any, when to facilitate the Company becomes aware timely preparation and delivery of certificates (not bearing any restrictive legends) representing the occurrence of any event as a result of which the applicable securities to be sold under such Registration Statement or the Prospectus included Statement, and enable such securities to be in such Registration Statement (denominations and registered in such names as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwritersunderwriters or agents, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such complianceHolders, may request;
(vij) use its reasonable best efforts to prevent if reasonably requested by the managing underwriter or obtain the withdrawal underwriters or a Holder of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly Registrable Securities being sold in connection with an Underwritten Offering, incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriters, if any, underwriters and the Holders may reasonably request to of a Majority of the Registrable Securities being sold by all Holders agree should be included therein in order relating to permit the intended method plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the principal amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and any other terms of the Underwritten Offering of the Registrable Securities; 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 upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viiik) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request in the event of the applicable Registration Statement and issuance of any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies stop order of which the Company is aware suspending the effectiveness of the applicable Prospectus (including each preliminary Prospectus) and Registration Statement, or of any amendment order suspending or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to preventing the use of such any related Prospectus or suspending the qualification of any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request included in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectivefor sale in any jurisdiction, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, obtain at the managing underwriter or underwriters, if any, and their respective counsel, in connection with earliest practicable time the registration or qualification withdrawal of such Registrable Securities for offer stop order or other order (the period between the issuance and sale under withdrawal of any stop order or other order referred to herein as a "Section 9(k) Period"); provided that the securities or “blue sky” laws of each state and other jurisdiction of Company shall extend the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as period during which such Registration Statement remains will be maintained effective (including the periods referred to in effect Section 9(b)) by the number of days in the Section 9(k) Period;
(l) use reasonable best efforts to cause all Common Stock covered by such Registration Statement to be listed on any securities exchange or automated quotation system on which the Common Stock is then listed, if such Common Stock is not already so listed and so as to permit if such listing is then permitted under the continuance rules of sales and dealings such securities exchange or automated quotation system;
(m) in such jurisdictions the case of an Underwritten Offering, cause the senior executive officers of the United States for so long 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 complete the distribution de-register, remove or withdraw all or any portion of the Holder's Registrable Securities covered by the from a Shelf 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 , as requested by such jurisdiction where it is not then so subjectHolder;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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;
(xiiio) 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 transfer 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 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the 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;
(xviip) 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;
(xviiiq) 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by one representative appointed by the parties referred Holders of a Majority of the Registrable Securities covered by the applicable Registration Statement, by any managing underwriter or underwriters participating in any Underwritten Offering to in (A) through (E) abovebe effected pursuant to such Registration Statement, and by any attorney, accountant or other agent retained by such Holders or any such managing underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Company, and cause all of the Company’s 's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, during normal business hours to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person Holders or managing underwriter or agent thereof in connection with such Registration Statement as shall be necessary to enable them such Persons to exercise their due diligence responsibility, responsibility (subject to the foregoing, provided that any such entry by each Person gaining access referred to information or personnel pursuant to in this Section 2.04(a)(xix9(q) shall agree into customary confidentiality agreements in a form reasonably acceptable 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 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 or (z) such information is independently developed by such PersonCompany);
(xxr) to cause the executive officers of the Company to participate if requested in the customary “road show” presentations that may be reasonably requested writing by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale Holders holding a Majority of the Registrable Securities.
(b) As a condition precedent Securities included in such Registration Statement, prepare and file with the SEC amendments and post-effective amendments to any such Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish Statement and amendments and supplements to the Company Prospectus used in connection with such information regarding the distribution of such securities and such other information relating Registration Statement as shall be necessary to such Holder, its ownership enable any transferee of Registrable Securities and other matters as the Company may from time included in such Registration Statement who becomes a Holder under this Agreement to time reasonably request in writing. Each resell 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Holder's Registrable Securities pursuant to such Registration Statement, to the extent that such amendments, post-effective amendments and supplements shall be required for such transferee- Holders to be named as selling securityholders in such Registration Statement until such Holder’s receipt and Prospectus; and
(s) use reasonable best efforts to take all other steps necessary to effect the registration of the copies of the supplemented or amended Prospectus Registrable Securities contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thhereby.
Appears in 1 contract
Registration Procedures. (a) In connection with If and whenever the Registration and/or sale Company is required to effect the registration of any Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause and facilitate the Registration registration, offering and the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof as promptly as is practicable and, pursuant thereto, the Company shall:
(ia) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectuswith respect to such Registrable Securities, make all required filings required in connection therewith and (if the Registration Statement is not automatically effective upon filing) use reasonable best efforts to cause such Registration Statement to become effective as promptly as practicable; provided, that before filing a Registration Statement or any amendments or supplements thereto, (A) the Company shall furnish to the underwriters, if any, and counsel to the Holders participating in Representative for such Registration, registration copies of all documents prepared proposed to be filed, which documents will shall be subject to review by counsel to the review of such underwriters and such participating Holders and their respective counselRepresentative at the Company’s expense, and (B) consider give the Representative participating in good faith any comments of the underwriters and Holders and their respective counsel such registration a reasonable opportunity to comment on such documentsdocuments and keep the Representative reasonably informed as to the registration process;
(iib) cause the Company’s representatives to supply all information reasonably requested by the relevant Holders or their respective representatives in connection with the Registration Statement that is customarily provided by issuers and their representatives in connection with a registration statement;
(c) prepare and file with the SEC such amendments and supplements to such any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement or until all of the Registrable Securities covered by such Registration Statement have been disposed of and to comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all 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 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 Registrable Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of covered by such Registration Statement;
(ivd) notify furnish to each Holder participating in the participating Holders and the managing underwriter or underwritersregistration, if anywithout charge, and (if requested) confirm such advice in writing and provide number of copies of the relevant documentsProspectus 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 Holder may reasonably request, including in order to facilitate the disposition of the Registrable Securities owned by such Holder;
(e) use reasonable best efforts to (i) register or qualify such Registrable Securities under such other securities or blue sky laws of such U.S. jurisdiction(s) as soon as any Holder participating in the registration reasonably practicable after notice thereof is received by requests and (ii) do any and all other acts and things that may be necessary or reasonably advisable to enable such Holder to consummate the disposition of such Holder’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 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(e);
(Af) promptly notify each Holder participating in the registration:
(i) each time when the applicable Registration Statement, any pre-effective amendment thereto, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment thereto has been filed or becomes effectivethereto, or when the applicable Prospectus or any amendment or supplement to such Prospectus same has been filed, become effective;
(B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (Cii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for any such purposes, purpose; and
(D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for offering sale under the applicable securities or sale in any jurisdiction or the initiation or threatening blue sky laws of any proceeding for such purposejurisdiction;
(vg) promptly notify each selling Holder and participating in such registration, at any time when a Prospectus relating thereto is required to be delivered under the managing underwriter or underwritersSecurities Act, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or that would cause the Prospectus included in such Registration Statement (as then in effect) contains any to contain an untrue statement of a material fact or omits to state a material omit any fact necessary to make the statements made therein (in the case of such Prospectus and any preliminary Prospectus, 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 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 light of the circumstances under which they were made;
(h) 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 reasonable best efforts to promptly obtain the withdrawal or lifting of any such order or suspension;
(i) not misleading orfile or make any amendment to any Registration Statement with respect to any Registrable Securities, if for or any other reason it shall be necessary during such time period to amend 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; provided, that (i) each Holder 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 in order and (ii) each Holder agrees to comply with notify the Securities Act and, in either case Company as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge of any inaccuracy or change in information previously furnished to the selling Company by such Holder and or of the managing underwriter or underwriters, if any, an amendment or supplement to occurrence of any event that would cause the Prospectus 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 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 Holder such that such Prospectus shall not contain any untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omit to state a material fact regarding such Holder or the distribution of such Registrable Securities necessary to make the statements therein not misleading in light of the circumstances under which will correct such statement or omission or effect such compliancethey were made;
(vij) use its reasonable best efforts cause such Registrable Securities to prevent or obtain be listed on each securities exchange on which the withdrawal of any stop order or other order suspending the use of any preliminary or final ProspectusCommon Stock is then listed;
(viik) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and cooperate with the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold and not bearing pursuant to such Registration Statement free of any restrictive Securities Act legends; legends and to register representing such Registrable Securities number of shares of Common Stock and registered in such denominations and such names as such selling Holder or the underwriter(s), if any, Holders of the Registrable Securities may reasonably request at least two Business Days a reasonable period of time prior to such sale sales of Registrable SecuritiesSecurities pursuant to such Registration Statement; provided 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;
(xii) 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;
(xiiil) not later than the effective date of such Registration Statement, provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement;
(m) not later than the applicable 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 which are in a form eligible for deposit with The Depository Trust Company; provided 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;
(xivn) enter into customary agreements and use reasonable best efforts to take such other actions as are reasonably requested by the relevant Holders in order to expedite or facilitate the case disposition 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 agreementsuch Registrable Securities;
(xvo) if requested by the relevant Holders, promptly include in the case of an Underwritten Offeringany Registration Statement or Prospectus, obtain for delivery pursuant to and addressed a supplement or post-effective amendment if necessary, such information as such Holders may reasonably request to have included therein, including information relating 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 “Plan of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution Distribution” of the underwriting agreement Registrable Securities, the purchase price being paid therefor and brought down any other terms of the 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 promptly as practicable after the closing under Company is notified of the underwriting agreementmatters to be included in such Prospectus supplement or post-effective amendment;
(xvip) 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, as soon as reasonably practicablewithin the required time period, but no later than 90 days after the end an earnings statement covering a period of the twelve (12-month period ) months, beginning with the first day of the Company’s first fiscal quarter commencing after the effective date of the applicable Registration StatementStatement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an which earnings statement satisfying will satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated Rule 158 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 Statementor any successor provisions thereto;
(xviiq) provide make representations and cause warranties to be maintained a transfer agent such Holders and registrar for all Registrable Securities covered agents, if any, in form, substance and scope as are customarily made by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;issuers in secondary offerings; and
(xviiir) cause all Registrable Securities covered by the applicable Registration Statement use reasonable best efforts to be listed on cooperate with 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 such Holder participating in the Registration, (B) the underwriters (which term, for purposes disposition of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the such Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their respective counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 filings required 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesmade with FINRA.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Registration Rights Agreement (Upbound Group, Inc.)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseCompany's registration obligations under Section 2.1 hereof, the Company shall use reasonable best efforts effect such registrations to effect or cause the Registration and permit the sale of such the Registrable Securities in accordance with the intended method or methods of disposition thereof andthereof, and pursuant thereto the Company shall as expeditiously as possible:
(ia) prepare Prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or ProspectusRegistration 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 use its reasonable efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided, that before filing any such Registration Statement or Prospectus or any amendments or supplements thereto, thereto (Aother than documents that would be incorporated or deemed to be incorporated therein by reference and that the Company is required by applicable securities laws or stock exchange requirements to file) the Company shall furnish to the underwritersInitial Stockholders, the Initiating Holders, the Special Counsel and the Managing Underwriters of such offering, if any, and to the Holders participating in such Registration, copies of all such documents prepared proposed to be filed, which documents will be subject to the review of such underwriters the Initial Stockholders, the Initiating Holders, the Special Counsel and such participating Holders and their respective counselManaging Underwriters, and the Company shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (Bother 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) consider in good faith any comments to which the holders of a majority of the underwriters and Registrable Securities covered by such Registration Statement, the Initial Stockholders, the Initiating Holders and their respective counsel on such documents;or the Special Counsel shall reasonably object in writing within two full Business Days.
(iib) prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in accordance with Section 2.1; cause the terms of this Agreement 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 of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to securities covered by such Registration Statement and during the Prospectus used applicable period in connection therewith as may be necessary to keep accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of as so amended or such Registration Statement;Prospectus as so supplemented.
(ivc) notify Notify the participating Holders selling Series B Securityholders, the Initial Stock holders, the Initiating Holders, the Special Counsel and the managing underwriter or underwritersManaging Underwriters, if any, promptly, and (if requestedrequested by any such person) confirm such advice notice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when a Prospectus, any Prospectus supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filed with the applicable SEC, and, with respect to a Registration Statement or any amendment thereto post-effective amendment, when the same has been filed or becomes become effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC or any other Governmental Authority federal or state governmental authority for amendments or supplements to such a Registration Statement or such related Prospectus or for additional information, and of the contents of such request, (Ciii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposesthat purpose, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiv) 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 offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
, (v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence existence of any fact or happening of any event as which makes any statement of a result of which the applicable Registration Statement or the Prospectus included material fact in such Registration Statement (as then or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which would require the making of any changes in effect) contains the Registration Statement or Prospectus in order that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (not misleading, and that in the case of such Prospectus and any preliminary 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 ormisleading, provided that the Company shall not be required to disclose such fact or event if for any other reason it shall be necessary during such time period to amend fact 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 SECevent has not been publicly disclosed, 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;
(vi) use its of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) Use all reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use effectiveness of a Registration Statement, or the lifting of any preliminary suspension of the qualification (or final Prospectus;exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment.
(viie) If reasonably requested by an Initial Stockholder, the Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or the holders of a majority of the Registrable Securities being sold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the managing underwritersInitial Stockholders, the Initiating Holders, the Special Counsel, the Managing Underwriters, if any, and the Holders may reasonably request to or such holders, in connection with any offering of Registrable Securities, agree should be included therein in order to permit the intended method of distribution of the Registrable Securities; as required by applicable law, and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon promptly as reasonably is practicable after being notified 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.
(viiif) furnish Furnish to each selling Holder Series B Securityholder, the Special Counsel, the Initial Stockholders, and each underwriterManaging Underwriter, if any, without charge, as many at least one conformed copies as such Holder or underwriter may reasonably request copy of the applicable Registration Statement or Statements and any amendment or 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);.
(ixg) deliver Deliver to each selling Holder holder of Registrable Securities, the Special Counsel, the Initial Stockholders, and each underwriterManaging Underwriter, if any, in connection with any offering of Registrable Securities, without charge, as many copies of the applicable Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary Prospectusprospectus) and any amendment or supplement thereto as such Holder or underwriter persons may reasonably request (it being understood that request; and the Company hereby consents to the use of such Prospectus or any each amendment or supplement thereto by each of the selling Holder holders of Registrable Securities and the underwriters, if any, in connection with the any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;.
(xh) on or prior Prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with each the selling HolderSeries B Securityholders, the managing underwriter or 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 each state and other jurisdiction of such jurisdictions within the United States as any selling Holder Series B Securityholder or managing underwriter or underwriters, if any, or their respective counsel Managing Underwriter reasonably request 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 reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process in suits or to taxation in any such jurisdiction where it is not then so subject;.
(xii) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xii) 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 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 underwriter or underwritersManaging Underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiiij) 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 later than 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 effective date statements therein, in the light of the applicable 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, provide a CUSIP number for use all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;reasonable efforts to cause it to become effective as promptly as is practicable.
(xivk) Enter into such agreements (including, in the case event of an Underwritten Offering, obtain for delivery 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 addressed 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 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 's ability to and addressed to the underwriter or underwriters anddo so, to the extent agreed 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 Company’s independent certified public accountantssame 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 selling Holder, a comfort letter 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 Company’s independent certified public accountants (and the independent certified public accountants with respect of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or any business acquired or to any be acquired company by the Company for which financial statements) 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 content for covering matters of the type of Underwritten Offering, including with comfort customarily covered in "comfort" letters customarily delivered in connection with quarterly period financial statements 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 applicableany, dated to evidence the date continued validity of execution 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 and brought down to or other agreement entered into by the closing under the underwriting agreement;Company.
(xvil) use 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 being 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 best efforts written assurances by each such person that such information will only be used in connection with matters relating to comply such Registration Statement.
(m) 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 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 rules 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 regulations promulgated thereunder and covering the period of at least 12 months(ii) if not sold to underwriters in such an offering, but not more than 18 months, beginning with commencing on the first month day of the first fiscal quarter of the Company commencing after the effective date of the a Registration Statement;, which statements shall cover said 12- month periods.
(xviin) provide Cooperate with the selling Series B Securityholders to facilitate the timely preparation 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 delivery 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the certificates representing Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, sold and (E) not bearing any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be includedrestrictive legends; and for a reasonable period prior to the filing of enable such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 Registrable Securities to be confidential, in such denominations and of which determination registered in such Person is notified, unless (x) names as the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that selling Series B Securityholders may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securitiesrequest.
(bo) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) Use all copies, other threasonable efforts
Appears in 1 contract
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreementregistrations under SECTION 1 hereof, through an Underwritten Offering or otherwise, the Company Pentegra shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and:
(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;
(iia) prepare and file with the SEC such amendments (including post-effective amendments) to such registration statement and supplements to the related prospectus to appropriately reflect the plan of distribution of the securities registered thereunder until the completion of the distribution contemplated by such Registration Statement registration statement or for so long thereafter as a dealer is required by law to deliver a prospectus in connection with the offer and sale of the shares of Registrable Common covered by such registration statement and/or as shall be necessary so that neither such registration statement nor the related prospectus 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 so that such registration statement and the Prospectus used related prospectus will otherwise comply with applicable legal requirements; (b) provide to any Stockholder requesting to include shares of Registrable Common in connection therewith such registration statement and a single counsel for all holders of Registrable Common requesting to include shares of Registrable Common in such registration statement, which counsel shall be selected by the holders of a majority of shares of Registrable Common requested to be included in such registration statement and shall be reasonably satisfactory to Pentegra, an opportunity to review and provide comments with respect to such registration statement (and any post-effective amendment thereto) prior to such registration statement (or post-effective amendment) becoming effective; (c) use its best efforts to register and qualify the Registrable Common covered by such registration statement under applicable securities or "Blue Sky" laws of such jurisdictions as may be the holders shall reasonably request for the distribution of the Registrable Common; (d) take such other actions as are reasonable and necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions requirements of the Securities Act and the rules and regulations thereunder; (f) furnish such number of prospectuses (including preliminary prospectuses) and documents incident thereto as a Stockholder from time to time may reasonably request; (e) provide to any Stockholder requesting to include Registrable Common in such registration statement and any managing underwriter participating in any distribution thereof, and to any attorney, accountant or other agent retained by Stockholder or managing underwriter, reasonable access to appropriate officers and directors of Pentegra to ask questions and to obtain information reasonably requested by any Stockholder, managing underwriter, attorney, accountant or other agent in connection with respect such registration statement or any amendment thereto, provided, however, that (i) in connection with any such access or request, any such requesting persons shall cooperate to the disposition extent reasonably practicable to minimize any disruption to the operation by Pentegra of all its business and (ii) any records, information or documents shall be kept confidential by such requesting persons, unless (1) such records, information or documents are in the public domain or otherwise publicly available or (2) disclosure of such records, information or documents is required by court or administrative order or by applicable law (including, without limitation, the Securities Act); (h) list or include such Registrable Common on any securities exchange or quotation system on which any stock of Pentegra is then listed or included, if the listing or inclusion of such Registrable Common is then permitted under the rules of such exchange or quotation system; (i) use its best efforts to keep the Stockholder informed of Pentegra's best estimate of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC earliest date on which such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement or any post-effective amendment thereto will become effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) will notify the participating Holders Stockholder and the managing underwriter or underwriters, if any, and underwriters participating in the distribution pursuant to such registration statement promptly (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (Ai) when the applicable Registration Statement Pentegra is informed that such registration statement or any post-effective amendment thereto has been filed or to such registration statement becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (Bii) of any written comments by the SEC or any request by the SEC for an amendment or any other Governmental Authority for amendments or supplements supplement to such Registration Statement registration statement or such Prospectus or for additional informationany related prospectus, (Ciii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement registration statement or of any order preventing or suspending the use of any preliminary or final Prospectus related prospectus or the initiation or threatening threat of any proceedings proceeding for such purposesthat purpose, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (Eiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any shares of Registrable Securities Common included in such registration statement for offering or sale in any jurisdiction or the initiation or threatening threat of any a proceeding for such that purpose;
, (v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any determination by Pentegra that an event as has occurred which makes untrue any statement of a result of which the applicable Registration Statement or the Prospectus included material fact made in such Registration Statement (as then registration statement or any related prospectus or which requires the making of a change in effect) contains such registration statement or any related prospectus in order that the same will not contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts of the completion of the distribution contemplated by such registration statement if it relates to prevent or obtain an offering by Pentegra; (j) in the withdrawal event of the issuance of any stop order suspending the effectiveness of such registration statement or other of any order suspending or preventing the use of any preliminary related prospectus or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as suspending the managing underwriters, if any, and the Holders may reasonably request to be qualification of any shares of Registrable Common included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and registration statement for sale in any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectivejurisdiction, use its reasonable best efforts promptly to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legendsobtain its withdrawal; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(xiik) 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 otherwise 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;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC SEC, and make generally available to its security holders, as soon as reasonably practicable, but no not later than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing fifteen months after the effective date of the applicable Registration Statementsuch registration statement, an earnings statement satisfying covering the period of at least twelve months beginning with the first full fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Sources: Registration Rights Agreement (Pentegra Dental Group Inc)
Registration Procedures. (a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwiseCompany’s obligations under Section 3, the Company shall use all reasonable best efforts to effect or cause the such Registration and to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof anddistribution thereof, and pursuant thereto the Company shall as expeditiously as practicable:
(ia) prepare and file with the required SEC (which such filing in the case of a Demand Registration Statementshall be made within ninety (90) days after the Company’s receipt of a Demand), including a Registration Statement on an appropriate registration form, which Registration Statement shall comply as to form in all exhibits material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required under by the Securities Act SEC to be filed therewiththerewith or incorporated by reference therein, and before filing with the SEC a in either case use all reasonable efforts to cause such Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters, if any, become effective and to the Holders participating remain effective in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documentsaccordance with Section 3.3;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement effective in accordance with for the terms of this Agreement applicable period, or such shorter period which shall terminate when all Registrable Securities have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and 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 Shares Registered thereonInitiating Holders set forth in such Registration Statement or supplement to the Prospectus;
(iiic) 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 Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify the participating Holders and if requested by the managing underwriter or underwritersunderwriters or an Initiating Holder being offered for sale in connection with an Underwritten Offering, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) 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 has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing underwriter or underwritersextent required by applicable law, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to underwriter or underwriters or such Initiating Holder consider should be included therein in order relating to permit the intended method plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered for sale, the purchase price being paid therefor and, with respect to any other terms of the offering, of the Registrable SecuritiesSecurities 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;
(viiid) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effectiveany public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify, and qualify or cooperate with each selling Holderthe Initiating Holders, the managing underwriter or underwriters, if any, and their respective counsel, counsel in connection with the registration Registration or qualification of such Registrable Securities for offer and sale under the state securities or “blue sky” sky laws of each state and other jurisdiction of the United States such jurisdictions as any selling Initiating Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request requests in writing and (ii) do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit enable the continuance of sales and dealings disposition 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 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 taxation or general service of process or taxation in any such jurisdiction where it is not then so subject;
(xie) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder the Initiating Holders 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 without any restrictive legends in compliance with the Securities Act legendsAct; and to register enable such Registrable Securities to be in such denominations and registered in such names as such selling Holder the managing underwriter or the underwriter(s), if any, underwriters may request at least two Business Days prior to such sale of Registrable Securities; 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 Systemreasonably request;
(xiif) cooperate and assist in any filings required use all reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be made with the FINRA and listed an each securities exchange, if any, on which any of the Company’s securities are Common Stock is then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are Nasdaq Market, if the Common Stock is then quoted, and traded thereon;
(g) in the performance case of any due diligence investigation by any underwriter a firm commitment underwritten offering, execute an underwriting agreement in form and substance usual in such transactions; and
(including any “qualified independent underwriter”h) that is required furnish to be retained in accordance with each Initiating Holder a signed counterpart, addressed to 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;of:
(xiiii) not later than an opinion of counsel for the Company dated the effective date of the applicable such Registration StatementStatement (and, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; 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;
(xiv) in the case of if such registration includes 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 Offeringunderwritten public offering, dated the date of the closing under the underwriting agreement;), reasonably satisfactory in form and substance to such underwriters, and
(xvii) in a “comfort” letter, dated the case effective date of an Underwritten Offering, obtain for delivery to and addressed to the underwriter or underwriters such Registration Statement (and, to the extent agreed by the Company’s independent certified if such registration includes an underwritten 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 with quarterly period financial statements if applicableoffering, dated the date of execution of the underwriting agreement and brought down to the 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 signed 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent certified public accountants who have certified its the Company’s financial statements included in such Registration Statement, covering substantially the same matters with respect 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 Person in connection with such Registration Statement as shall be necessary (and the prospectus included therein) and, in the case of the accountants’ letter, with respect to enable them to exercise their due diligence responsibility, subject events subsequent to the foregoing, provided that any such 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 date of such information is required by law financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities and, in the case of the accountants’ letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as such Initiating Holder (or regulation or is requested or required by depositionthe underwriters, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, if any) may reasonably request; and
(yiii) such information is or becomes publicly known without a breach otherwise reasonably cooperate with the Initiating Holders to carry out the intent of this Agreement, (F) such information is or becomes available . It shall be a condition precedent to such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person;
(xx) to cause the executive officers obligations of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in take any Underwritten Offering and otherwise action pursuant to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary this Agreement with respect to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to Securities of any Registration hereunder, the Company may require each Initiating Holder as to which any Registration is being effected to furnish to the Company that 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 such Initiating Holder agrees to furnish such information to the Company and to cooperate cooperates with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreementin preparing such Registration.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other th
Appears in 1 contract
Registration Procedures. (a) In connection At such time as the Company is obligated to file a Registration Statement with the Registration and/or sale of Registrable Securities SEC pursuant to this Agreement, through an Underwritten Offering or otherwiseSection 2, the Company shall will use commercially reasonable best efforts to effect or cause the Registration and registration of the sale of such Registrable Securities in accordance with the intended methods method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
a. The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) prepare and file the required date as of which the Common Stock covered by such Registration Statement, including all exhibits and financial statements required under the Securities Act Statement cease to be filed therewith, and before filing with Registrable Securities or (ii) the SEC a date on which each Purchaser shall have sold all of the Registrable Securities covered by such Registration Statement or Prospectus, or (the “Registration Period”). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto, (Athereto and prospectuses contained therein) furnish shall not contain any untrue statement of a material fact or omit to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared state a material fact required to be filedstated therein, which documents will be subject or necessary to make the review statements therein (in the case of such underwriters and such participating Holders and their respective counselprospectuses, and (B) consider in good faith any comments the light of the underwriters and Holders and their respective counsel on such documents;circumstances in which they were made) not misleading.
(ii) b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to such a Registration Statement and the Prospectus prospectus used in connection therewith with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective in accordance with at all times during the terms of this Agreement and to Registration Period, and, during such period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Shares Registered thereon;
(iii) Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of a Shelf Registration, prepare and file with the SEC such 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 holders of at least a majority of the Registrable Securities 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 holders of at least a majority of the Registrable Securities. 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 Company 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 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 Prospectus used 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 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 Purchasers, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the prospectus included in connection therewith 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 keep 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 Statement effective Period, and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3rd anniversary after the effective date of such Registration Statement;
(iv) notify take all other actions reasonably necessary or advisable to qualify the participating Holders and the managing underwriter or underwritersRegistrable Securities for sale in such jurisdictions; provided, if anyhowever, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by that the Company shall not be required in connection therewith or as a condition thereto to (Ax) when the applicable Registration Statement or qualify to do business in any amendment thereto has been filed or becomes effectivejurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or when the applicable Prospectus or any amendment or supplement (z) file a general consent to such Prospectus has been filed, (B) service of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company process in any applicable underwriting agreement cease to be true such jurisdiction. The Company shall promptly notify Legal Counsel and correct in all material respects, and (E) 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 offering sale under the securities or sale in “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;.
(v) f. The Company shall notify Legal Counsel and Purchasers in writing of the happening of any event, as promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes as practicable after becoming aware of the occurrence of any event such event, as a result of which the applicable Registration Statement or the Prospectus prospectus included in such a Registration Statement (Statement, as then in effect) contains any , includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) , not misleading or(provided that in no event shall such notice contain any material, 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 nonpublic information), and, in either case as subject to Section 3(o), promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter a supplement or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will to correct such untrue statement or omission omission, and deliver ten (10) copies of such supplement or effect amendment to Legal Counsel and Purchasers (or such compliance;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 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.
(vi) g. The Company shall use its commercially reasonable best efforts to prevent or obtain the withdrawal issuance of any stop order or other order suspending suspension of effectiveness of a Registration Statement, or the use suspension of the qualification of any preliminary of the Registrable Securities for sale in any jurisdiction and, if such an order or final Prospectus;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 threat of any proceeding for such purpose.
h. The Company shall notify the 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 (viiprovided 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 Purchasers (or such other number of copies as the Purchasers may reasonably request).
i. The Company shall promptly notify the 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 the Purchasers 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 any disclosure of information concerning the Purchasers 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 a Purchaser is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Purchaser and allow such Purchaser, at the Purchaser’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 Purchasers and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Purchasers may reasonably request and registered in such names as the Purchasers may request.
l. If requested by a Purchaser, the Company shall (i) as soon as practicable incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may Purchaser reasonably request requests to be included therein in order relating to permit the intended method sale and distribution of distribution Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable SecuritiesSecurities 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 reasonably practicable after being notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;
; and (viiiiii) furnish as soon as practicable, supplement or make amendments to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable any Registration Statement and if reasonably requested by a Purchaser holding any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such 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;
(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the 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;
(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the .
m. The Company may satisfy its obligations hereunder without issuing physical stock certificates through the shall use of The Depository Trust Company’s Direct Registration System;
(xii) 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 commercially reasonable 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;.
(xiii) not later than the effective date of the applicable Registration Statement, 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 n. 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;
(xiv) 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 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 with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) use its reasonable best efforts to shall comply with all applicable rules and regulations of the SEC and make generally available in connection with any registration hereunder.
o. Notwithstanding anything to its security holdersthe contrary herein, as soon as reasonably practicable, but no later than 90 days at any time after the end 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 12Board 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 Purchasers in writing of the existence of material, non-month 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 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 beginning with such Grace Periods shall not exceed an aggregate of one hundred twenty (120) days and the first day of the Company’s first quarter commencing any Grace Period must be at least two (2) trading days after the effective 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 in clause (i) and shall end on and include the later of the date the Purchasers receive the notice referred to in clause (ii) and the date referred to in such 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 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 prospectus included as part of the applicable Registration Statement, Statement (unless 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 exemption 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 the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Actprospectus delivery requirements exists), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (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 officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such 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 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 or (z) such information is independently developed by such Person;
(xx) to cause the executive officers of the Company 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 participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each 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 this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such HolderPurchaser’s receipt of the copies notice of a Grace Period and for which the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder will deliver to the Company (at the Company’s expense) all copies, other thPurchaser has not yet settled.
Appears in 1 contract
Sources: Registration Rights Agreement (Bridge Capital Holdings)