Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible: (a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations; (b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any; (c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus; (d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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; (e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment; (f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters; (g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents; (h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto; (i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so; (j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters; (k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities; (l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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; (m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any; (n) provide a transfer agent and registrar for all Registrable Securities; (o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder; (p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons; (q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and (r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 3 contracts
Sources: Registration Rights Agreement (First Nis Regional Fund Sicav), Registration Rights Agreement (Nye Telenor East Invest As), Registration Rights Agreement (Golden Telecom Inc)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered under the Securities Act as provided in Sections 4.1 and 4.2 or any "draw-down" pursuant to this AgreementSection 4.1, the Company shall promptly will promptly:
(a) cooperate with any underwriters for, and the holders of such Registrable Securities, and will enter into a usual and customary underwriting agreement with respect thereto and take all such other reasonable actions as may be are necessary or desirable advisable to permit permit, expedite and facilitate the sale disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereofmanner contemplated by the related registration statement, and pursuant thereto the Company shall as expeditiously as possible:will provide to the holders of such Registrable Securities, any underwriter participating in any distribution thereof pursuant to a registration statement, and any attorney, accountant or other agent retained by any holder of Registrable Securities or underwriter, reasonable access to appropriate Company officers and employees to answer questions and to supply financial and other information reasonably requested by any such holders of Registrable Securities, underwriter, attorney, accountant or agent in connection with such registration statement;
(ab) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare Registrable Securities and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in cause such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such registration statement effective and, with respect to any "draw-down," to reflect the Registration Statement continuously effective for a period method of not less than ninety (90) days; cause disposition of the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed Registrable Securities pursuant to Rule 424 under the Securities Act; such "draw-down," and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities and other securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such Registrable Securities and such other securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement or, in the case of a registration pursuant to Section 4.2 hereof, the expiration of sixty (60) days after such registration statement becomes effective; and will furnish, upon request, to each such seller prior to the filing thereof a copy of any amendment or supplement to such registration statement or prospectus and shall not file any such amendment or supplement to which any such seller shall have reasonably objected on the Prospectusgrounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(d) notify the Participating Shareholders furnish to each seller of such Registrable Securities and the managing underwritersunderwriters (if any) such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the Securities Act, such documents, if any, incorporated by reference in such registration statement or prospectus, and such other documents, as such seller may reasonably request;
(e) promptly, upon written request, deliver to each seller of Registrable Securities and the underwriters (if requested by any such Person) confirm such advice in writingany), copies of all correspondence between the Commission and (i) when the Prospectus Company, (ii) its counsel, or any Prospectus supplement or post-effective amendment has been filed, and(iii) its auditors, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentregistration statement;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale other securities covered by such registration statement under the such other securities or blue sky laws of the states of the United States as each seller shall reasonably request, to keep such jurisdictions registration or qualification in effect for so long as any seller or underwriter reasonably requests such registration statement remains in writing effect, and do any and all other acts or and things which may be necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided such registration statement, 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 wherein it is would not then but for the requirements of this Subsection (f) be obligated to be so qualified qualified, or to take subject itself to taxation in any action which would subject it such jurisdiction, or to consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(jg) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery immediately notify each seller of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement such registration statement, at any time when a prospectus relating thereto is required to be registered with delivered under the Securities Act, upon discovery that, or approved by upon the happening of any event as a result of which, the prospectus included in such other governmental agencies registration statement, as then in effect, includes an untrue statement of a material fact or authorities within omits to state any material fact required to be stated therein or necessary to make the United States statements therein not misleading in the light of the circumstances then existing, which untrue statement or omission requires amendment of the registration statement or supplementation of the prospectus, and at the request of any such seller, prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) use its reasonable best efforts to cause all misleading in the light of the circumstances then existing; provided, however, that each holder of Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition registered pursuant to such registration statement, and statement agrees that he will not sell any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees Registrable Securities pursuant to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided statement during the time that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by is preparing and filing with the Commission a supplement to or an amendment of such Personsprospectus or registration statement;
(qh) in the event of the issuance of any stop order suspending the effectiveness of any registration statement or of any order suspending or preventing the use of any prospectus or suspending the qualification of any Registrable Securities for sale in any jurisdiction, use its best efforts to obtain its withdrawal;
(i) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security securities holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first month of the first 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, no ;
(j) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch registration statement; and
(rk) take use its best efforts to list all Common Stock covered by such other reasonable steps that are necessary registration statement on each securities exchange or advisable to permit securities quotation system on which any of the sale of such Registrable SecuritiesCommon Stock is then listed. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented and as shall be required by law or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference Commission in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceconnection therewith.
Appears in 3 contracts
Sources: Shareholder Agreement (Maxim Group Inc /), Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Registration Procedures. Whenever a Shareholder any Holder has requested that any Registrable Securities shares of Common Stock be registered pursuant to this AgreementSections 1.1, 1.2 or 1.3 hereof, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as reasonably possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, shares and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; effective as soon as reasonably practicable thereafter (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including furnish counsel for such Holder with copies of all such documents incorporated by referenceproposed to be filed) and to which cause such registration statement to comply as to form and content in all material respects with the Participating Shareholders or the underwritersSEC's forms, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or rules and regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to the Registration Statement such registration statement and prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety 120 days (902 years in the case of a registration pursuant to Section 1.3 hereof) days; cause or until such Holder has completed the Prospectus distribution described in such registration statement, whichever occurs first;
(c) furnish to be supplemented by any required Prospectus supplementsuch Holder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), and such other documents 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 Participating Shareholders set forth in such Registration Statement or supplement to the ProspectusHolder may reasonably request;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 such jurisdictions as any seller such Holder requests (and to maintain such registrations and qualifications effective for a period of 120 days (2 years in the case of a registration pursuant to Section 1.3 hereof) or underwriter reasonably requests in writing until such Holder has completed the distribution of such shares, whichever occurs first), and to do any and all other acts or and things which may be necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; such shares (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified be required but for this subsection (4), (ii) subject itself to taxation in any such jurisdiction, or (iii) file any general consent to take any action which would subject it to general service of process or taxes in any such jurisdiction); provided that, notwithstanding anything to the contrary in this Agreement with respect to the bearing of expenses, if any such jurisdiction where it shall require that expenses incurred in connection with the qualification of such shares in that jurisdiction be borne in part or full by such Holder, then such Holder shall pay such expenses to the extent required by such jurisdiction;
(e) notify such Holder, at any time when a prospectus relating thereto is not then so subject; provided, further, required to be delivered under the Act within the period that the Company will not be is required to qualify such Registrable Securities in any jurisdiction in which keep the securities regulatory authority requires that registration statement effective, of the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) aboveas a result of which the prospectus included in any such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, prepare and promptly prepare, file and furnish to the Holder a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the Registrable Securitiessuch shares, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or, in light of the circumstances then existing, necessary to make the statements therein not misleading;
(mf) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement such shares to be listed on the Nasdaq National Market and each other exchange securities exchanges, if any, on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anylisted;
(ng) provide a transfer agent and registrar for all Registrable Securitiessuch shares not later than the effective date of such registration statement;
(oh) enter into such customary agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, such Holder reasonably request requests (and subject to its reasonable approval) 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereundershares;
(pi) make available for inspection during normal business hours by the Participating Shareholderssuch Holder, by any underwriter participating in any disposition distribution pursuant to such registration statement, and by any attorney, accountant or other agent retained by the Participating Shareholders such Holder or by any such underwriter, all financial and other records, pertinent corporate documents documents, and properties (other than confidential intellectual property) of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qj) otherwise if the offering is underwritten and at the request of any seller of Registrable Securities, use its reasonable best efforts to comply with all applicable rules and regulations of furnish on the SEC, and make generally available date that Registrable Securities are delivered to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period underwriters for sale pursuant to such registration: (i) commencing at an opinion dated such date of counsel representing the end Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Act (except that such counsel need not express any fiscal quarter in which Registrable Securities are sold opinion as to financial statements or other financial or statistical data contained therein), (C) to such other customary matters as reasonably may be requested by counsel for the underwriters in or by such seller or its counsel and (D) (not an opinion but as a firm negative assurance) that to the best knowledge of such counsel, such registration statement does not contain a material misrepresentation or best efforts underwriting offering, omission to state a material fact necessary to make the statements therein not misleading; and (ii) beginning a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the first month applicable accounting requirements of the Company's first fiscal quarter commencing after Act, and such letter shall additionally cover such other financial matters (including information as to the effective period ending no more than five business days prior to the date of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch letter) with respect to such registration as such underwriters reasonably may request; and
(rk) take such other reasonable steps that are necessary or advisable in connection with an underwritten offering pursuant to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders a registration statement filed pursuant to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) 1.1 hereof, such Shareholder will forthwith discontinue disposition enter into an underwriting agreement in customary form and containing customary provisions, including provisions for indemnification of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, underwriters and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, andcontribution, if so directed requested by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceany underwriter.
Appears in 3 contracts
Sources: Registration Rights Agreement (Micron Technology Foundation Inc), Registration Rights Agreement (Interland Inc), Registration Rights Agreement (Interland Inc /Mn/)
Registration Procedures. Whenever It shall be a Shareholder has requested that condition precedent to the obligations of the Company to take any Registrable Securities be registered action pursuant to this AgreementArticle III that the Stockholders requesting inclusion in any Piggyback Registration or Demand Registration (a “Registration”) shall furnish to the Company such information regarding them, the Registrable Securities owned by them, the intended method of disposition of such Registrable Securities, and such agreements regarding indemnification, disposition of such securities and other matters referred to in and consistent with this Article III, as the Company shall reasonably request and as shall be required in connection with the action to be taken by the Company (such intended method of distribution may include a distribution to, and resale by, the partners of the holders of any Registrable Securities). With respect to any Registration which includes Registrable Securities owned by a Stockholder, the Company shall promptly take all such actions as may be necessary or desirable will, subject to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, Sections 3.01 and pursuant thereto the Company shall as expeditiously as possible3.02:
(a) with respect to As promptly as possible (in the case of a request to file Demand Registration, no more than (i) 45 days after the Company’s receipt of a Request Notice that is not for a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to on Form S-3 or any successor or comparable form and (ii) 30 days after the Company’s receipt of a Request Notice that is for a Registration on Form S-3 or any successor or comparable form) prepare and file with the SEC not later than sixty (60) days after receipt of Commission a registration statement on the relevant Demand Request (which sixty (60) day period may be extended appropriate form prescribed by the Company Commission for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofdisposition, and use its reasonable best efforts to cause such Registration Statement registration statement to become effectiveeffective as soon as practicable thereafter; provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to counsel representing the Stockholders selling Registrable Securities under such Registration copies of all documents proposed to be filed, which documents shall be subject to the review and reasonable comments of such counsel; provided, further, that the Company shall not file any be obligated to maintain such Registration Statement effective for a period longer than (x) 360 days or (y) such shorter period when all of the Registrable Securities covered by such registration statement have been sold pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations“Effectiveness Period”);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare Prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement such registration statement and any documents required to be incorporated by reference therein as may be necessary to keep the Registration Statement continuously registration statement effective for a period of not less than ninety the Effectiveness Period (90but not prior to the expiration of the time period referred to in Section 3(3) daysof the 1933 Act and Rule 174 thereunder, if applicable); cause the Prospectus prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act1933 Act and comply with the 1933 Act in a timely manner; and comply with the provisions of the Securities 1933 Act applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement registration statement during the applicable period in accordance with the intended method or methods of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement registration statement or supplement to the Prospectusprospectus;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice Promptly incorporate in writing, (i) when the Prospectus or any Prospectus a prospectus supplement or post-effective amendment has been filed, and, such information as the underwriter(s) or the Majority Stockholder reasonably requests to be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such prospectus supplements or post-effective amendments as soon as practical after being notified of the Registration Statement matters to be incorporated in such supplement or amendment;
(d) Furnish to such Stockholder, without charge, such number of conformed copies of the registration statement and any post-effective amendmentamendment thereto as such Stockholder may reasonably request, and such number of copies of the prospectus (including each preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein, as such Stockholder or underwriter or underwriters, if any, may request in order to facilitate the disposition of the securities being sold by such Stockholder (it being understood that the Company consents to the use of the prospectus and any amendment or supplement thereto by such Stockholder covered by the registration statement and the underwriter or underwriters, if any, in connection with the offering and sale of the securities covered by the prospectus or any amendments or supplements thereto);
(e) Notify such Stockholder, at any time when a prospectus relating thereto is required to be delivered under the 1933 Act, when the same has become effective, (ii) Company becomes aware of the happening of any request by event as a result of which the SEC for amendments prospectus included in such registration statement (as then in effect) contains any untrue statement of material fact or supplements omits to state a material fact necessary to make the statements therein (in the case of the prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the Registration Statement investors of such securities, such prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the Prospectus or for additional informationstatements therein, in light of the circumstances under which they were made, not misleading;
(iiif) Make generally available to its security holders an earnings statement, which need not be audited, satisfying the provisions of Section 11(a) of the issuance 1933 Act as soon as reasonably practicable after the end of the 12-month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the registration statement, which statement shall cover said 12-month period;
(g) After the filing of a registration statement, (i) notify each Stockholder holding Registrable Securities covered by the SEC such registration statement of any stop order suspending issued or, to the effectiveness of Company’s knowledge, threatened by the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true Commission and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction under the applicable securities or the initiation or threatening blue sky laws of any proceeding for such purposejurisdiction, and (viii) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement registration statement or the qualification of any Registrable Securities at the earliest possible moment;
, and (fiii) as promptly as practicable after filing with the SEC make available for inspection by any seller of Registrable Securities, any document which is incorporated underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by reference into the Registration Statement any such seller or the Prospectus (after initial filing underwriter, all financial and other records, pertinent corporate and business documents and properties of the Registration Statement)Company as shall be necessary to enable them to exercise their due diligence responsibility, provide copies of and cause the Company’s Representatives to supply all such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing information reasonably requested by any such seller, underwriter, without chargeattorney, at least one signed copy of the Registration Statement and any post-effective amendment theretoaccountant, 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 or agent in connection with such documentsregistration statement;
(h) deliver to In connection with the Participating Shareholders preparation and filing of each Registration, give each holder of Registrable Securities included in such Registration, the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectusunderwriter(s) and any their respective counsel, accountants and other Representatives and agents the opportunity to participate in the preparation of each registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto as such and comparable statements under the securities or blue sky laws of any jurisdiction and give each of the foregoing Persons may reasonably request; access to the books and records, pertinent corporate and business documents and properties of the Company consents and its subsidiaries and such opportunities to discuss the use business and affairs of the Prospectus Company and its subsidiaries with the respective Representatives and the independent public accountants who have certified the Company’s consolidated financial statements, and supply all other information and respond to all other inquiries requested by such holders, underwriter(s), counsel, accountants and other Representatives and agents as shall be necessary or appropriate, in the opinion of such holders or underwriter(s), to conduct a reasonable investigation within the meaning of the 1933 Act, and the Company shall not file any registration statement or amendment thereto or any amendment prospectus or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus to which such holder or any amendment or supplement theretosuch underwriter(s) shall object;
(i) Cause its employees to participate in “road shows” and other presentations as reasonably requested by the underwriters in connection with such Registration;
(j) Deliver promptly to counsel representing the Stockholders selling Registrable Securities under such Registration and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors, and all memoranda relating to discussions with the Commission or its staff with respect to such Registration; and
(k) On or prior to the date on which the Registration Statement registration statement is declared effective, use its reasonable best efforts to (i) register or qualify, or and cooperate with the Participating Shareholders and the such underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities the securities covered by the registration statement for offer and sale under the securities or blue sky laws of such jurisdictions each state and other jurisdiction of the United States as any seller the managing underwriter or underwriter reasonably underwriters, if any, requests in writing writing, to use its reasonable best efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Securities covered by the Registration Statementapplicable registration statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further(ii) obtain a “comfort” letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters, that the Company will not which letter shall be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities addressed to the underwriters;
(k) , and the Company shall use its reasonable best efforts to cause such comfort letter to also be addressed to the holders of such Registrable Securities, (iii) obtain an opinion from the Company’s outside counsel in customary form and covering such matters of the type customarily covered by such opinions, which opinion shall be addressed to the underwriters and the holders of such Registrable Securities, and (iv) enter into and perform its obligations under 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 included in the Registration Statement to be registered with Request Notice, in the case of a Demand Registration, or approved by such other governmental agencies or authorities within the United States as may be necessary to enable holders of a majority of the seller or sellers thereof Registrable Securities being sold or the underwriters, if any, to consummate in the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement case of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if anyPiggyback Registration, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection(including effecting a stock split, whether combination of shares, recapitalization, or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Companyreorganization). The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees thatStockholders, upon receipt of any notice from the Company of the happening of any event of the kind described in subsection (e) of this Section 5(d)(vi) hereof3.03, such Shareholder will forthwith discontinue disposition of the Registrable Securities until such Shareholder's the Stockholders’ receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by subsection (e) of this Section 5(l), 3.03 or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectusprospectus, and, if so directed by the Company, each Participating Shareholder Stockholder will, or will request the underwriters managing underwriter or underwriters, if any, to, deliver deliver, to the Company (at the Company's ’s sole expense) all copies, other than permanent file copies then in such Shareholder's Stockholder’s possession, of the Prospectus prospectus covering such Registrable Securities securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) hereof No holder of Registrable Securities shall be extended required to make any representations or warranties to or agreements with the Company, other than representations and warranties regarding such holder, such holder’s ownership of and title to the Registrable Securities to be sold in such offering, and its intended method of distribution and any liability of any such holder under such underwriting agreement shall be limited to liability arising from breach of its representations and warranties therein and shall be limited to an amount equal to the net amount received by such holder from the number sale of days during the period from and including the date of the giving of such notice Registrable Securities pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceregistration statement.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Smart & Final Stores, Inc.), Registration Rights Agreement (Smart & Final Stores, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the 1933 Act as provided in Section 2.2 and, as applicable, 2.3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty the Registration Statement, or amendments thereto, to effect such registration (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60) days if at 1933 Act or the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare rules and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file SEC, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.2); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive Trading Days or an aggregate of 20 Trading Days during each year (each a "Black-Out Period")) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period");
(iii) furnish to each holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the 1933 Act, in conformity with the requirements of the 1933 Act, and such other documents, as such holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement during registration statement under such other securities laws or blue sky laws as any holder of Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such holder of Registrable Securities to consummate the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement jurisdictions of the securities owned by such holder of Registrable Securities, 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 wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or supplement to the Prospectusconsent to general service of process in any such jurisdiction;
(dv) notify use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Shareholders holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each holder of Registrable Securities a signed counterpart, addressed to such holder of Registrable Securities, and the managing underwriters, if any, promptlyof an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(if requested by any such Personvii) notify the Investor and its counsel promptly and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(iA) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(viii) notify each holder of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence 1933 Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and at the request of any such holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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;
(eix) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qx) otherwise use its commercially 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, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five 1933 Act and Rule 158 thereunder;
(45xi) days after enter into such agreements and take such other actions as the end of any twelve Investors shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting Investors) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rxii) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such holder of Registrable Securities and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 3 contracts
Sources: Registration Rights Agreement (Global Axcess Corp), Registration Rights Agreement (Kahiki Foods Inc), Registration Rights Agreement (Kahiki Foods Inc)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 4.1, 4.2 and 4.3, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review of and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested comment by such Participating Shareholders counsel (it being understood that counsel to the Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement); ;
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders any Selling Holder and any underwriter and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such Selling Holder may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cause the Registrable Securities covered cooperate as reasonably requested by the Registration Statement to be registered with Selling Holders and the underwriters in the offering, marketing or approved by such other governmental agencies or authorities within selling of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lxvi) upon have appropriate officers of the occurrence Company, and cause representatives of the Company’s independent registered public accountants, to participate in any event contemplated due diligence discussions reasonably requested by paragraph any Selling Holder or any underwriter;
(d)(vixvii) aboveif requested by any underwriter, prepare agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxix) enter into such agreements (including an underwriting agreement) cooperate and take all such other actions assist in connection therewith as Participating Shareholders or any filings required to be made with the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities FINRA and in such connection, whether or not an underwriting agreement the performance of any due diligence investigation by any underwriter that is entered into required to be undertaken in accordance with the rules and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating FINRA;
(xx) otherwise use reasonable best efforts to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters cooperate as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders Selling Holders and the underwritersunderwriters in the offering, if any, such letters to be in customary form and covering matters marketing or selling of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderRegistrable Securities;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxxi) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof4.5(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l4.5(a)(ix) or and, if so directed by the Advice.Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event the Company shall give such notice, a
Appears in 3 contracts
Sources: Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, LLC)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration effected by the Corporation pursuant to this AgreementSection 2, the Company shall promptly take all such actions Corporation will keep each Holder advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with each registration and as to the intended method or methods of disposition completion thereof, and pursuant thereto . At its expense the Company shall as expeditiously as possibleCorporation will:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare Prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, securities and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto and remain effective for at least two (including such documents incorporated by reference2) to which the Participating Shareholders or the underwritersyears or, if anyearlier, shall reasonably object until the distribution described in light of the requirements of the Securities Act or any other applicable laws or regulationsregistration statement has been completed;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare Prepare and file with the SEC Commission during the period specified in Section 2.4(a) such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection with such registration statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement;
(c) Furnish to the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth Holders participating in such Registration Statement or supplement registration and to the Prospectusunderwriters of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as the Holders and such underwriters may reasonably request in order to facilitate the public offering of such securities;
(d) notify Furnish, at the Participating Shareholders and request of any Holder requesting registration of Registrable Securities at the managing underwriters, time such securities are delivered to the underwriters (if any, promptly, and (if requested by any such Person) confirm such advice for sale in writingconnection with a registration pursuant to this Section 2, (i) when an opinion, dated such date, of the Prospectus or any Prospectus supplement or post-effective amendment has been filedcounsel representing the Corporation for the purposes of such registration, andin form and substance as is customarily given to underwriters in an underwritten public offering, with respect addressed to the Registration Statement or any post-effective amendment, when underwriters and to the same has become effective, Holders requesting registration of Registrable Securities and (ii) a letter dated the date of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) commencement of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale a “bring-down” letter dated as of the Registrable Securities covered closing date of such offering, from the independent accountants of the Corporation, in form and substance as is customarily given by the Prospectus or any amendment or supplement thereto;
(i) prior independent accountants to the date on which the Registration Statement is declared effectiveunderwriters in an underwritten public offering, use its reasonable best efforts addressed to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with to the Holders requesting registration or qualification of, such of Registrable Securities for offer Securities;
(e) Use its best efforts to register and sale under qualify the securities covered by such registration statement under such other securities or blue sky Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided that the Corporation shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any seller such states or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable jurisdictions, unless the Corporation is already subject to enable the disposition service in such jurisdictions jurisdiction and except as may be required by the Securities Act;
(f) Notify each Holder of the Registrable Securities covered by the Registration Statement; provided that the Company will not be such registration statement at any time when a prospectus relating thereto is required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service be delivered under the Securities Act as a result of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) above, prepare as a supplement or post-effective Amendment to result of which the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so thatprospectus included in such registration statement, as thereafter delivered to the purchasers of the Registrable Securitiesthen in effect, the Prospectus will not contain includes an untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(mg) use its reasonable best efforts to cause Cause all such Registrable Securities covered registered by the Registration Statement such registration statement to be listed on the Nasdaq National Market each securities exchange and each other exchange quotations system on which similar securities issued by the Company Corporation are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicequoted.
Appears in 3 contracts
Sources: Registration Rights Agreement (Bioject Medical Technologies Inc), Registration Rights Agreement (Bioject Medical Technologies Inc), Registration Rights Agreement (Bioject Medical Technologies Inc)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act or an Underwritten Offering as provided in Section 4.1, Section 4.2 and Section 4.3, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five will (5A) days before filing, furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed filed, (including documents incorporated therein by reference), B) provide each such Selling Holder and their counsel the opportunity to enable object to any information pertaining to such Participating Shareholders Selling Holder or its plan of distribution that is contained in the registration statement (it being understood that each Selling Holder and the underwriters, if any, counsel to such Selling Holder will conduct their review such documents prior to the filing thereof, and the Company shall provide any comments promptly) and (C) make such reasonable any changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter Selling Holder or underwriters, if anytheir counsel with respect to such information;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements and “stickers” to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 4.1, the expiration of 90 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the Prospectusexpiration of 90 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits or documents incorporated by reference therein), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NASDAQ or the New York Stock Exchange;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission or any other Governmental Entity for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission or any other Governmental Entity of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Shareholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders any Selling Holder and any underwriter and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such Selling Holder may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cause the Registrable Securities covered cooperate as reasonably requested by the Registration Statement to be registered with Selling Holders and the underwriters in the offering, marketing or approved by such other governmental agencies or authorities within selling of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lxvi) upon have appropriate officers of the occurrence Company, and cause representatives of the Company’s independent registered public accountants, to participate in any event contemplated due diligence discussions reasonably requested by paragraph any Selling Holder or any underwriter;
(d)(vixvii) aboveif requested by any underwriter, prepare agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company Securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxix) enter into such agreements (including an underwriting agreement) cooperate and take all such other actions assist in connection therewith as Participating Shareholders or any filings required to be made with the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities FINRA and in such connection, whether or not an underwriting agreement the performance of any due diligence investigation by any underwriter that is entered into required to be undertaken in accordance with the rules and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating FINRA;
(xx) otherwise use reasonable best efforts to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters cooperate as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders Selling Holders and the underwritersunderwriters in the offering, if any, such letters to be in customary form and covering matters marketing or selling of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderRegistrable Securities;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxxi) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal,” Block Trade Offering or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of to complete or amend the information required by such registration statement.
(b) Without limiting any notice from the Company of the happening of any foregoing, in the event of that the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition offering of Registrable Securities until such Shareholder's receipt is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the copies Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. No Selling Holder shall be required to make any representations, warranties, indemnities or agreements with the Company or the underwriters other than the representations, warranties, indemnities and agreements regarding such Selling Holder, its ownership of the supplemented or amended Prospectus contemplated Registrable Securities being registered on its behalf, its intended method of distribution and any other representations, warranties, indemnities and agreements required by Section 5(llaw.
(c) In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), or until it is advised in writing (the "ADVICE") by the Company that the use unlegended certificates representing ownership of the Prospectus may be resumedRegistrable Securities being sold (unless, and has received copies of any additional or supplemental filings which are incorporated by reference in the ProspectusCompany’s sole discretion, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned are to be issued in Section 5(c) hereof shall be extended by the number of days during the period from and including the date of the giving of such notice uncertificated form pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.customary arrangements for issuing share
Appears in 3 contracts
Sources: Shareholders’ Agreement (New Fortress Energy Inc.), Shareholders Agreement (New Fortress Energy LLC), Shareholder Agreement (New Fortress Energy LLC)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use its best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 2.1 and 2.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall will as expeditiously as possiblepracticable:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to (A) prepare and file with the SEC not later than sixty a registration statement on the appropriate form which includes such Registrable Securities, (60B) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up promptly respond to an additional sixty (60) days if at the time of all comments received with respect to such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare registration statement and make and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued all amendments thereto deemed necessary by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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’s legal counsel, and (C) thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effective; effective at the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsearliest practicable date;
(bii) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement accurate and effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities and other securities covered by such Registration Statement during registration statement until the applicable period in accordance with the intended methods earlier of disposition such time as all of such Registrable Securities have been disposed of by the Participating Shareholders sellers thereof set forth in such Registration Statement registration statement or for the longer of (A) nine months or (B) if the Company is eligible to conduct a continuous secondary offering pursuant to Rule 415 under the Securities Act, two years;
(iii) furnish to each such seller of Registrable Securities at least two Business Days prior to the filing thereof a copy of any amendment or supplement to such registration statement or prospectus and not file any such amendment or supplement to which any such seller shall have reasonably objected on the Prospectusgrounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(div) notify furnish to each seller of such Registrable Securities one copy of such registration statement and of each such amendment thereof and supplement thereto (in each case including all exhibits and documents filed therewith), such number of copies of the Participating Shareholders prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the managing underwritersrequirements of the Securities Act, such documents, if any, promptlyincorporated by reference in such registration statement or prospectus, and (if requested by any such Person) confirm other documents as such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, seller may reasonably request;
(v) of the receipt by the Company of any notification with respect use its reasonable efforts to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction register or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, qualify 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;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the such registration or qualification of, statement under such Registrable Securities for offer and sale under the other securities or blue sky laws of such jurisdictions as any each seller thereof shall reasonably request and to keep such registration or underwriter reasonably requests qualification in writing effect for so long as such registration statement remains in effect and do any and all other acts or and things that may be necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the its Registrable Securities covered by the Registration Statement; provided such registration statement, 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 wherein it is not then would not, but for the requirements of this subdivision (v), be obligated to be so qualified qualified, or to take subject itself to taxation in any action which would subject it such jurisdiction, or to consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(jvi) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale notify each seller of Registrable Securities of any stop order issued or threatened by the SEC and take all reasonable action required to prevent the entry of such stop order or to remove it if entered;
(vii) if such registration statement relates to an underwritten offering, (A) enter into an underwriting agreement with the underwriters for such offering, in form and substance satisfactory to each seller of Registrable Securities and the underwriters and containing such representations and warranties by the Company and such other terms as are generally prevailing in underwriting agreements of the same type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.5, and (B) obtain and furnish to each seller of Registrable Securities a signed counterpart, addressed to such seller, of the legal opinions and accountants’ comfort letters which are to be delivered to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(pviii) make available for inspection during normal business hours by the Participating Shareholdersany seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, statement and any attorney, accountant or other agent retained by the Participating Shareholders or any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qix) promptly notify each seller whose Registrable Securities are covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(x) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security securities holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first month of the first fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder;
(xi) cause all such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(xii) use commercially reasonable efforts to cause its management to participate fully in the sale process relating to such offering, no later than forty-five (45) days after including the end preparation of the applicable registration statement and the preparation and presentation of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm “road shows,” whether domestic or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsinternational; and
(rxiii) take all such other commercially reasonable steps that actions as are necessary or advisable in order to permit expedite or facilitate the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution disposition of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, covered by such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceregistration statement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Midland States Bancorp, Inc.), Registration Rights Agreement (Midland States Bancorp, Inc.), Registration Rights Agreement (Midland States Bancorp, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Section 2.1 and, as applicable, 2.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty Commission the Registration Statement, or amendments thereto, to effect such registration (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60) days if at Securities Act or the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare rules and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file Commission, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.1); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany registration statement pursuant to Section 2.1, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until the earlier to occur of six (6) years after the date of this Agreement(subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive days or an aggregate of 30 days in such six (6) years period) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period");
(iii) furnish to each seller of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement during registration statement under such other securities laws or blue sky laws as any seller thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such seller to consummate the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement jurisdictions of the securities owned by such seller, 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 wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or supplement to the Prospectusconsent to general service of process in any such jurisdiction;
(dv) notify use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Shareholders seller or sellers thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities a signed counterpart, addressed to such seller, and the managing underwriters, if any, promptlyof:
(A) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement),reasonably satisfactory in form and substance to such seller) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(B) a "comfort" letter (or, in the case of any Person which does not satisfy the conditions for receipt of a "comfort" letter specified in Statement on Auditing Standards No. 72, an "agreed upon procedures" letter), dated the effective date of such registration statement (and, if requested such registration includes an underwritten public offering, a letter of like kind dated the date of the closing under the underwriting agreement), signed by any the independent public accountants who have certified the Company's financial statement included in such Personregistration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities (with, in the case of an "agreed upon procedures" letter, such modifications or deletions as may be required under Statement on Auditing Standards No. 35) and, in the case of the accountants' letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as such seller (or the underwriters, if any) may reasonably request;
(vii) notify the Sellers' Representative and its counsel promptly and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(iA) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(viii) notify each seller of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and at the request of any such seller promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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;
(eix) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qx) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five Act and Rule 158 thereunder;
(45xi) days after enter into such agreements and take such other actions as the end of any twelve Sellers' Representative shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting sellers) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rxii) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. The Company will not file any registration statement pursuant to Section 2.1, or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference and proposed to be filed after the initial filing of the Registration Statement) to which the Sellers' Representative shall reasonably object, provided that the Company may file such documents in a form required by law or upon the advice of its counsel. The Company represents and warrants to each holder of Registrable Securities that it has obtained all necessary waivers, consents and authorizations necessary to execute this Agreement and consummate the transactions contemplated hereby other than such waivers, consents and/or authorizations specifically contemplated by the Securities Purchase Agreement. Each Shareholder Fund agrees that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in subdivision (viii) of this Section 5(d)(vi) hereof2.3, such Shareholder Fund will forthwith discontinue such Fund's disposition of Registrable Securities pursuant to the Registration Statement relating to such Registrable Securities until such ShareholderFund's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by subdivision (viii) of this Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, 2.3 and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies copies, then in such ShareholderFund's possession, possession of the Prospectus covering prospectus relating to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 3 contracts
Sources: Registration Rights Agreement (Directplacement Inc), Registration Rights Agreement (Directplacement Inc), Registration Rights Agreement (Dial Thru International Corp)
Registration Procedures. Whenever a Shareholder the Purchaser has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall promptly take all such actions as may be necessary or desirable will use its best efforts to permit effect the registration and the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall will as expeditiously as possible:
(a) prepare and within 60 days (or 45 days with respect to any Short-Form Registration) after the end of the period within which requests for registration may be given to the Company file with the Securities and Exchange Commission a request registration statement with respect to file a Registration Statement covering such Registrable Securities made pursuant to Article 3, and thereafter use its reasonable best efforts to cause such registration statement to become effective (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the holders of a majority of the Registrable Securities initiating such registration statement copies of all such documents proposed to be filed, which documents will be subject to review of such counsel);
(b) prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare Securities and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Exchange Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of either (i) not less than ninety 180 days (90subject to extension pursuant to Section 8.8 (b)) days; cause or, if such registration statement relates to an underwritten offering, such longer period as in the Prospectus opinion of counsel for the underwriters a prospectus is required by law to be supplemented delivered in connection with sales of Registrable Securities by an underwriter or dealer or (ii) such shorter period as will terminate when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (but in any event not before the expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) each seller of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening such number of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders registration statement, each amendment and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment supplement 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 the prospectus included in such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons seller may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(id) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction or to take any action which would subject it (iii) consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction);
(je) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the 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 notify each seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon , at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (d)(via “Changing Event”) aboveas a result of which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, at the request of any such seller, the Company will as soon as possible prepare and furnish to such seller (a “Correction Event”) a reasonable number of copies of a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(mf) use its reasonable best efforts to cause all such Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other securities exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwritersand, if anynot so listed, to be listed on the NASD automated quotation system;
(ng) provide a transfer agent and registrar for all such Registrable SecuritiesSecurities not later than the effective date of such registration statement;
(oh) enter into such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as Participating Shareholders the holders of a majority of the Registrable Securities being sold or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during effecting a customary lock-up period) and confirm the accuracy stock split or a combination of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereundershares);
(pi) make available for inspection during normal business hours by the Participating Shareholdersany seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, statement and any attorney, accountant or other agent retained by the Participating Shareholders or any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, Employees and employees independent accountants to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qj) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SECSecurities and Exchange Commission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five Act and Rule 158 thereunder;
(45k) days after in the end event of the issuance of any twelve (12)-month period (i) commencing at stop order suspending the end effectiveness of a registration statement, or of any fiscal quarter order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in which Registrable Securities are sold to underwriters such registration statement for sale in a firm or any jurisdiction, the Company will use its reasonable best efforts underwriting offeringpromptly to obtain the withdrawal of such order;
(l) use its best efforts to obtain one or more comfort letters, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after dated the effective date of such registration statement (and, if such registration includes a public offering, dated the Registration Statementdate of the closing under the underwriting agreement), which statements shall cover said twelve (12)-month periodssigned by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters as the holders of a majority of the Registrable Securities being sold reasonably request; and
(rm) take use its best efforts to provide a legal opinion of the Company’s outside counsel, dated the effective date of such registration statement (and, if such registration includes a public offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other reasonable steps that are necessary or advisable to permit documents relating thereto in customary form and covering such matters of the sale type customarily covered by legal opinions of such Registrable Securitiesnature. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Idleaire Technologies Corp), Securities Purchase Agreement (Idleaire Technologies Corp), Securities Purchase Agreement (Idleaire Technologies Corp)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 2.1 and 2.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofwill, and pursuant thereto the Company shall as expeditiously as possible:
(ai) prepare and (within 90 days after the end of the period within which requests for registration may be given to the Company or in any event as soon thereafter as practicable) file with respect the Commission the requisite registration statement to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, effect such registration and thereafter use its reasonable best efforts to cause such registration statement to become effective; provided, however, that the Company may discontinue any registration of its securities that are not Registrable Securities (and, under the circumstances specified in Sections 2.2(a) or 2.6, if applicable, its securities that are Registrable Securities) at any time prior to the effective date of the registration statement relating thereto;
(ii) prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during registration statement until the applicable period earlier of (a) such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, registration statement and (if requested by any b) 180 days after the effective date of such Person) confirm such advice in writingregistration statement, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, except with respect to any registration statement filed pursuant to Rule 415 under the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) Securities Act if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease is eligible to be true and correctfile a registration statement on Form S-3, (v) of the receipt by in which case the Company of any notification with respect shall use its best efforts to keep the suspension of registration statement effective and updated, from the qualification date such registration statement is declared effective until such time as all of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order cease to make the statements therein not misleadingbe Registerable Securities;
(eiii) make every reasonable effort furnish to obtain the withdrawal each seller of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated Registrable Securities covered by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)such registration statement, provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many number of copies of the Prospectus prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any amendment or supplement thereto 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 Persons seller may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(iiv) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts (x) to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale other securities covered by such registration statement under the such other securities or blue sky laws of such jurisdictions States of the United States of America where an exemption is not available and as the sellers of Registrable Securities covered by such registration statement shall reasonably request, (y) to keep such registration or qualification in effect for so long as such registration statement remains in effect and (z) to take any seller or underwriter other action that may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such sellers to consummate the disposition in such jurisdictions of the Registrable Securities covered securities to be sold by the Registration Statement; provided such sellers, 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 wherein it is would not then but for the requirements of this subdivision (iv) be obligated to be so qualified or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kv) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities within the United States as may be necessary in the opinion of counsel to the Company and counsel to the seller or sellers of Registrable Securities to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lvi) upon in the occurrence case of any event contemplated by paragraph (d)(vi) abovean underwritten or "best efforts" offering, prepare a supplement or post-furnish at the effective Amendment date of such registration statement to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers each seller 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing seller's underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.signed counterpart of:
Appears in 3 contracts
Sources: Registration Rights Agreement (Vaalco Energy Inc /De/), Registration Rights Agreement (Vaalco Energy Inc /De/), Registration Rights Agreement (1818 Fund Lp Brown Brothers Harriman Co Long T Michael Et Al)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 5.1, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, 5.2 and pursuant thereto 5.3 the Company shall as expeditiously as reasonably possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveand remain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration ("Selling Holders") copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereofreview of such counsel, and the Company shall make such review to be conducted with reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anypromptness;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 5.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 5.2, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 5.3, the expiration of one year after such registration statement becomes effective;
(diii) notify the Participating Shareholders furnish to each Selling Holder and the managing underwriterseach underwriter, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance securities being sold by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of Selling Holder such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such documents;
number of copies of the prospectus contained in such registration statement (hincluding each preliminary prospectus and any summary prospectus) deliver to and any other prospectus filed under Rule 424 under the Participating Shareholders Securities Act, in conformity with the requirements of the Securities Act, and the underwriterssuch other documents as such Selling Holder and underwriter, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus public sale or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale other disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(iiv) prior to the date on which the Registration Statement is declared effective, use its commercially reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 laws or blue sky laws of such jurisdictions as any seller or Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably requests in writing request, and do take any and all other acts or things action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such Selling 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 wherein it is would not then but for the requirements of this clause (iv) be obligated to be so qualified or qualified, to take any action which would subject it itself to general service of process or taxes taxation in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required or to qualify such Registrable Securities file a general consent to service of process in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(jv) cooperate with the Participating Shareholders and the managing underwriters, if any, use commercially reasonable efforts to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable cause such Registrable Securities to be in listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such denominations and registered in securities are so listed, use commercially reasonable efforts to cause such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to be listed on the underwritersNew York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market;
(kvi) use its commercially reasonable best efforts to cause the such Registrable Securities covered by the Registration Statement such 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 Selling Holder(s) thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lvii) upon the occurrence of any event contemplated by paragraph (d)(vi) abovein connection with an Underwritten Offering, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;obtain for each Selling Holder and underwriter:
(m1) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions opinion of counsel to for the Company, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary customarily covered in opinions requested in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders such Selling Holder and underwriters, if any; and
(iii2) obtain a "comfort" letters and updates thereof from the Company's independent certified public accountantsletter (or, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or case of any such underwriter, all financial and other records, pertinent corporate documents and properties of Person which does not satisfy the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon conditions for receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.a
Appears in 3 contracts
Sources: Stockholders Agreement (Fortress Investment Group LLC), Stockholders Agreement (Brookdale Senior Living Inc.), Stockholders Agreement (Brookdale Senior Living Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Section 2.1 and, as applicable, 2.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file Commission the Registration Statement and the Company furnishes or amendments thereto, to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed including such audited financial statements as may be required by the president Securities Act or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company rules and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file Commission, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.1); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the Holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(c) subject to paragraph (b) abovewith respect to any registration statement pursuant to Section 2.1, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement until the earlier to occur of five (5) years after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive days or an aggregate of 30 days in such five (5) years period) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the "Registration Statement during Maintenance Period");
(c) furnish to each seller of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the applicable period prospectus contained in accordance such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the intended methods requirements of the Securities Act, and such other documents, as such seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectusseller;
(d) notify use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws as any seller thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such seller to consummate the Participating Shareholders disposition in such jurisdictions of the securities owned by such seller, 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 wherein it would not but for the requirements of this subdivision (d) be obligated to be so qualified or to consent to general service of process in any such jurisdiction;
(e) use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;
(f) furnish to each seller of Registrable Securities a signed counterpart, addressed to such seller, and the managing underwriters, if any, promptlyof:
(1) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(2) a "comfort" letter (or, in the case of any Person which does not satisfy the conditions for receipt of a "comfort" letter specified in Statement on Auditing Standards No. 72, an "agreed upon procedures" letter), dated the effective date of such registration statement (and, if requested such registration includes an underwritten public offering, a letter of like kind dated the date of the closing under the underwriting agreement), signed by any the independent public accountants who have certified the Company's financial statement included in such Personregistration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities (with, in the case of an "agreed upon procedures" letter, such modifications or deletions as may be required under Statement on Auditing Standards No. 35) and, in the case of the accountants' letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as such seller (or the underwriters, if any) may reasonably request;
(g) notify the Sellers' Representative and its counsel promptly and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(i1) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v4) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(h) notify each seller of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and at the request of any such seller promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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;
(ei) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holdersHolders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five Act and Rule 158 thereunder;
(45k) days after enter into such agreements and take such other actions as the end of any twelve Sellers' Representative shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting seller) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rl) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder The Company will not file any registration statement pursuant to Section 2.1, or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference and proposed to be filed after the initial filing of the Registration Statement) to which the Sellers' Representative shall reasonably object, provided that the Company may file such documents in a form required by law or upon the advice of its counsel. The Company represents and warrants to each holder of Registrable Securities that it has obtained all necessary waivers, consents and authorizations necessary to execute this Agreement and consummate the transactions contemplated hereby other than such waivers, consents and/or authorizations specifically contemplated by the Securities Purchase Agreement. The Fund agrees that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in subdivision (h) of this Section 5(d)(vi) hereof2.3, such Shareholder the Fund will forthwith discontinue the Fund's disposition of Registrable Securities pursuant to the Registration Statement relating to such Registrable Securities until such ShareholderFund's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by subdivision (h) of this Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, 2.3 and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies copies, then in such Shareholderthe Fund's possession, possession of the Prospectus covering prospectus relating to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 3 contracts
Sources: Registration Rights Agreement (ERF Wireless, Inc.), Registration Rights Agreement (ERF Wireless, Inc.), Registration Rights Agreement (Galaxy Minerals Inc)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Section 2.1, 2.2 or 2.4, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities that are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating to such securities; provided further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the Selling Holders copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review of and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested comment by such Participating Shareholders counsel (it being understood that counsel to the Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 2.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggy-Back Registration pursuant to Section 2.2, the Prospectusexpiration of 60 days after such registration statement becomes effective;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such number of copies of any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder; provided, however, that no reports or documents need to be furnished to the extent they have been filed with the Commission and are publicly available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system.
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an underwritten offering, obtain for each underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters, and
(2) a “comfort” letter signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this clause (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Selling Holder agrees, and causes each of the Inspectors to agree, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided further that each of the Selling Holders agree that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process the initiation or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions threat of any escrow, lock-up or similar agreement(s) proceeding for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sopurpose;
(jx) cooperate with the Participating Shareholders and the managing underwritersnotify each Selling Holder, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities at any time when a prospectus relating thereto is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with Act, upon discovery that, or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) aboveas a result of which, 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 thatprospectus included in such registration statement, as thereafter delivered to the purchasers of the Registrable Securitiesthen in effect, the Prospectus will not contain includes 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, at the request of any Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state 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;
(mxi) use its every reasonable best efforts effort to cause all Registrable Securities covered by obtain the Registration Statement to be listed on withdrawal of any order suspending the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anyeffectiveness of such registration statement;
(nxii) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holdersthe Selling Holders, as promptly as practicable, an earnings statements satisfying statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 of the Commission promulgated thereunder (or any successor rule or regulation hereafter adopted by the Commission);
(xiii) cooperate with the Selling Holders and any underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), no later than forty-five (45) days after the end of if necessary or appropriate, representing securities sold under any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offeringregistration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(iixiv) beginning with have appropriate officers of the first month Company prepare and participate in customary “road shows” as requested by the managing underwriter(s);
(xv) have appropriate officers of the Company's first fiscal quarter commencing after the effective date , and cause representatives of the Registration StatementCompany’s independent registered public accountants to, which statements shall cover said twelve participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(12)-month periodsxvi) if requested by any underwriter, agree, and cause the Company, any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xvii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xviii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xix) otherwise use commercially reasonable efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xx) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
(rxxi) use commercially reasonable efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xx) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited time frame. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested, and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto. Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof2.7(a)(x), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE"2.7(a)(ix) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (Company, at the Company's ’s expense) , all copies, other than permanent file copies copies, then in such Shareholder's possession, Selling Holder’s possession of the Prospectus covering such Registrable Securities prospectus current at the time of receipt of such noticenotice relating to such Registrable Securities. If In the event the Company shall give such notice, the time periods mentioned in Section 5(c) hereof any applicable 60 day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of such a notice pursuant to regarding the happening of an event of the kind described in Section 5(d)(vi2.7(a)(ix) to and including the date when all such Participating Shareholder Selling Holders shall have received the copies of the receive such a supplemented or amended prospectus contemplated by Section 5(l) or and such prospectus shall have been filed with the AdviceCommission.
Appears in 3 contracts
Sources: Registration Rights Agreement (City Office REIT, Inc.), Registration Rights Agreement (City Office REIT, Inc.), Registration Rights Agreement (City Office REIT, Inc.)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereofreview of such counsel, and the Company shall make such review to be conducted with reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anypromptness;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or supplement (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the Prospectusexpiration of 60 days after such registration statement becomes effective;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(3) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filed, to the registration statement and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(ix) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(ex) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(jxii) cooperate with the Participating Shareholders sellers and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such sellers may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cause the Registrable Securities covered cooperate as reasonably requested by the Registration Statement to be registered with Selling Holders and the underwriters in the offering, marketing or approved by such other governmental agencies or authorities within selling of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lxiv) upon if requested by any Selling Holders or any underwriter, promptly incorporate in the occurrence of registration statement or any event contemplated by paragraph (d)(vi) aboveprospectus, prepare pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxv) enter into such agreements cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including an underwriting agreement“FINRA”) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request performance of any due diligence investigation by any underwriter that is required to be undertaken in order to expedite or facilitate accordance with the disposition of such Registrable Securities rules and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities ActFINRA; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;and
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxvi) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof3.6(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE"3.6(a)(ix) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (Company, at the Company's ’s expense) , all copies, other than permanent file copies copies, then in such Shareholder's possession, Selling Holder’s possession of the Prospectus covering such Registrable Securities prospectus current at the time of receipt of such noticenotice relating to such Registrable Securities. If In the event the Company shall give such notice, the time periods mentioned in Section 5(c) hereof any applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of such a notice pursuant to regarding the happening of an event of the kind described in Section 5(d)(vi3.6(a)(ix) to and including the date when all such Participating Shareholder Selling Holders shall have received the copies of the receive such a supplemented or amended prospectus contemplated by Section 5(l) or and such prospectus shall have been filed with the AdviceCommission.
Appears in 3 contracts
Sources: Registration Rights Agreement (Fuller Max L), Registration Rights Agreement (Us Xpress Enterprises Inc), Registration Rights Agreement (Us Xpress Enterprises Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration effected by the Company pursuant to this AgreementSection 1, the Company shall promptly take all such actions will keep each Holder advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with each registration and as to the intended method or methods of disposition completion thereof. At its expense, and pursuant thereto the Company shall as expeditiously as possiblewill use its best efforts to:
(a) with respect to Keep such registration effective for a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty period of one hundred fifty (60150) days after receipt of or until the relevant Demand Request Holder or Holders have completed the distribution described in the registration statement relating thereto, whichever first occurs; provided, however, that (which sixty i) such one hundred fifty (60150) day period may shall be extended by for a period of time equal to the Company for up to an additional sixty (60) days if period the Holder refrains, at the time request of such request the Company is engaged in negotiations in anticipation an underwriter of its participation in a material merger, acquisition Common Stock (or other form securities) of business combination orthe Company, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating on Form S-3 that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement are intended to be offered on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten continuous or delayed basis, including on a best efforts underwriting basissubject to compliance with applicable Commission rules, in which event such one hundred fifty (150) day period shall be extended for up to seventy-five (75) days, if necessary, to keep the managing underwriter or underwriters may determine the form registration statement effective to enable all such Registrable Securities 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationssold;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare Prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection with such registration statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods registration statement;
(c) Furnish such numbers of disposition by the Participating Shareholders set forth in such Registration Statement copies of prospectuses, including a preliminary prospectus or an amendment of or supplement to the Prospectusprospectus, as required by the Securities Act, and other documents, as a Holder from time to time may reasonably request;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, Cause 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;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement pursuant hereunder to be listed on the Nasdaq National Market a national securities exchange and each other securities exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anylisted;
(ne) provide Provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(of) In connection with any underwritten offering pursuant to a registration statement filed pursuant to Section 1.2 hereof, the Company will enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered in form reasonably necessary to effect the offer and sale of Common Stock, provided such underwriting agreement contains reasonable and customary provisions, and provided further, that each Holder participating in such underwriting shall also enter into and whether or not perform its obligations under such an agreement;
(g) Register and qualify the securities covered by such registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and statement under such other matters securities or blue sky laws of such jurisdictions as may shall be reasonably requested by the Participating Shareholders and underwritersHolders, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) provided that the Company shall deliver not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such documents states or jurisdictions unless the Company is already subject to service in such jurisdiction and certificates except as may be requested required by the Participating Shareholders and the managing underwriters, if any, 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 thereunderSecurities Act;
(ph) Promptly make available for inspection during normal business hours by the Participating ShareholdersHolders of Registrable Securities covered by such registration statement, any underwriter managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney, attorney or accountant or other agent retained by the Participating Shareholders or any such underwriterunderwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents documents, and properties of the Company, and cause the Company's ’s officers, directors directors, employees, and employees independent accountants to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant accountant, or agent agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection with therewith;
(i) Notify each Holder of Registrable Securities covered by such registration statement; provided that any records, information or documents that are designated by promptly after the Company in writing as confidential shall be kept confidential by receives notice thereof, of the time when such Personsregistration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed;
(qj) otherwise use its reasonable best efforts to comply with all applicable rules and regulations After such registration statement becomes effective, notify each Holder of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Registrable Securities Act, no later than forty-five (45) days after the end covered by such registration statement of any twelve (12)-month period (i) commencing at request by the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm Commission that the Company amend or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodssupplement such registration statement or prospectus; and
(rk) take such other reasonable steps that are necessary or advisable to permit the sale Notify each Holder of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes 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 kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies circumstances then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceexisting.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Varonis Systems Inc), Investors’ Rights Agreement (Varonis Systems Inc)
Registration Procedures. Whenever a Shareholder has requested that any If and whenever the Company is required by the provisions of Section 11.1 or 11.2 hereof to effect the registration of Registrable Securities be registered pursuant to this Agreementunder the Securities Act, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty Commission a registration statement (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the "Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDERStatement") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company with respect to such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofSecurities, and use its reasonable best efforts to cause such Registration Statement to become effective; and remain effective for such period as may be reasonably necessary to effect the Company shall sale of such securities, not file any Registration Statement to exceed three years in the case of a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto Section 11.1 and nine months in the case of a registration pursuant to Section 11.2 (including such documents incorporated by reference) subject to which extension as set forth in the Participating Shareholders or the underwriters, if any, shall reasonably object in light last paragraph of the requirements of the Securities Act or any other applicable laws or regulationsthis Section 11.3);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments to the such Registration Statement and supplements to such Registration Statement and the Prospectus contained therein (a "Prospectus") as may be necessary to keep the such Registration Statement continuously effective for such period as may be reasonably necessary to effect the sale of such securities, not to exceed three years in the case of a period registration pursuant to Section 11.1 and nine months in the case of not less than ninety (90) days; cause the Prospectus a registration pursuant to be supplemented by any required Prospectus supplementSection 11.2, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions provision of the Securities Act with respect (subject to extension as set forth in the disposition last paragraph of all this Section 11.3);
(c) use its best efforts to register and qualify the securities covered by such Registration Statement during under such state securities or blue sky laws of such jurisdictions as such participating holders may reasonably request in writing within 20 days following the applicable period in accordance with the intended methods original filing of disposition by the Participating Shareholders set forth in such Registration Statement or supplement Statement, except that the Company shall not for any purpose be required to the Prospectusqualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified;
(d) notify the Participating Shareholders security holders participating in such registration, promptly after it shall receive notice thereof, of the time when such Registration Statement has become effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;
(e) notify such holders promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(f) prepare and promptly file with the managing underwritersCommission and promptly notify such holders of the filing of such amendment or supplement to such Registration Statement or Prospectus as may be necessary to correct any statements or omissions if, if anyat the time when a Prospectus relating to such securities is required to be delivered under the Securities Act, promptly, and (if requested by any event shall have occurred as the result of which any such PersonProspectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading;
(g) confirm advise such advice in writingholders, 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 that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(h) advise such holders (i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, filed and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC Commission or any state securities authority for amendments or and supplements to the a Registration Statement or the and Prospectus or for additional informationinformation after the Registration Statement has become effective, (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purposeStatement, (iv) if at of the issuance by any time state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the representations Registrable Securities under state securities or warranties of the Company contemplated by paragraph (o) below cease to be true "blue sky" laws, and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence happening of any event which makes any statement made in the a Registration Statement, the Statement or related Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the such Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided so that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus they will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. As soon as practicable following expiration of the Suspension Period (as defined below), the Company shall prepare and file with the Commission 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;
(mi) use its reasonable best efforts furnish to cause all Registrable such holders such number of copies of a Prospectus, including a preliminary Prospectus, in conformity with the requirements of the Securities covered by the Registration Statement to be listed on the Nasdaq National Market Act, and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith documents, as Participating Shareholders or the managing underwriters, if any, they may reasonably request in order to expedite or facilitate the disposition of such the Registrable Securities and owned by them that are included in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsregistration; and
(rj) take such other reasonable steps that are necessary or advisable to permit in the sale event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such Registrable Securitiesoffering. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon Upon receipt of any notice (a "Suspension Notice") by a holder from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof11.3(h), such Shareholder will a holder shall forthwith discontinue disposition of the 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(l), 11.3(h) or until it the holder is advised in writing (the "ADVICEAdvice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters any broker-dealer acting as holder's agent to, deliver to the Company (at the Company's Company expense) all copies, other than permanent file copies then in such Shareholderthe holder's or broker-dealer's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company ; PROVIDED, HOWEVER, that in no event shall give such notice, the time periods mentioned in Section 5(c) hereof shall be extended by the number of days during the period from and including the date of on which the giving of such notice pursuant holder receives a Suspension Notice to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received on which the holder receives either the Advice or copies of the supplemented or amended prospectus Prospectus contemplated by Section 5(l) 11.3(h), and any additional or supplemental filings incorporated therein by reference (the Advice"Suspension Period"), exceed 60 days.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Telident Inc /Mn/), Stock Purchase Agreement (Famco Ii Liability Co & Family Financial Strategies Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered (a) in the case of the registration, qualification or compliance effected by the Company pursuant to this AgreementSection 3 hereof, the Company shall promptly take all such actions will keep each Holder reasonably advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with each registration, qualification and compliance and as to the intended method or methods of disposition completion thereof. With respect to any registration statement filed pursuant to Section 3, and pursuant thereto the Company shall as expeditiously as possibleshall:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty Commission with respect to such Registrable Securities, a registration statement on any form which (60a) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to for, (b) counsel for the Company deems appropriate, and the Participating Shareholders (unless the offering c) is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale resale of the Registrable Securities in accordance with the intended method or methods method(s) of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective; provided that no later than five (5) business days before filing with the Company shall not file any Registration Statement pursuant to Article 3 Commission a registration statement or prospectus or any amendment thereto amendments or any Prospectus or any supplement thereto (supplements thereto, including such documents incorporated by referencereference after the initial filing of any registration statement, the Company must (a) furnish to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
and to Investor’s counsel (b“Investor’s Counsel”) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents proposed to be filed (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed filed, which documents are subject to the review of the underwriters and such counsel, and (including documents incorporated therein b) notify each Holder of Registrable Securities covered by reference), such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to enable prevent the entry of such Participating Shareholders and the underwriters, stop order or to remove it if any, entered;
(ii) cause such registration statement to review such documents become effective prior to the filing thereof, Registration Deadline and remain effective at least for a period ending with the Company shall make such reasonable changes thereto first to occur of (including changes toi) the sale of all Registrable Securities covered by the registration statement, or (ii) the filing of amendments reflecting such changes to, documents incorporated availability under Rule 144 for the Holders to immediately freely resell without restriction all Registrable Securities covered by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyregistration statement (the “Effectiveness Period”);
(ciii) if a registration statement is subject to paragraph review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;
(biv) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such registration statement effective during the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods method(s) of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(dv) notify furnish, without charge, to the Participating Shareholders Holder one (1) signed copy of such registration statement (excluding any exhibits thereto other than applicable underwriting documents), each amendment and the supplement thereto (including one (1) conformed copy to each Holder and one (1) signed copy to each managing underwriters, if any, promptlyunderwriter and in each case including all exhibits thereto), and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) number of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) copies of the issuance by prospectus included in such registration statement (including each preliminary prospectus and any other prospectus filed under Rule 424 under the SEC of any stop order suspending Securities Act) as such Holders may request, in conformity with the effectiveness requirements of the Registration Statement or Securities Act, and such other documents as such Holder may reasonably request in order to facilitate the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction or owned by such Holder, but only during the initiation or threatening of any proceeding for such purpose, and Effectiveness Period;
(vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 applicable securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing Holder, and underwriter, if any, of Registrable Securities covered by such registration statement as may be necessary for the marketability of the Registrable Securities (such request to be made by the time the applicable registration statement is deemed effective by the Commission) and do any and all other acts or and things which may be reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration StatementHolder and each underwriter, if any; provided that the Company will is not be required to (a) qualify generally to do business in any jurisdiction where it is would not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not otherwise be required to qualify such Registrable Securities but for this Section 4(a)(vi), (b) register as a securities dealer, or (c) subject itself to taxation in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(jvii) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be immediately notify each Holder in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence writing of any event contemplated by paragraph (d)(vi) above, which causes the prospectus included in such registration statement to contain an untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and furnish to such Holder a supplement or post-effective Amendment amendment to such prospectus (or prepare and file appropriate reports under the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document Exchange Act) so that, as thereafter delivered to the purchasers of the Registrable SecuritiesInvestor, the Prospectus will such prospectus does not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;, unless suspension of the use of such prospectus otherwise is authorized herein or in the event of a Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the termination of such suspension or Blackout Period; and
(mviii) use its reasonable best efforts comply, and continue to cause all Registrable comply during the period that such registration statement is effective under the Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if anyAct, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus all material respects with the Securities Act; (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) addressed to Participating Shareholders Act and the underwriters, if any, covering the matters customary in underwritten primary offerings Exchange Act and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available Commission with respect to its security holders, earnings statements satisfying the provisions disposition of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; andall securities covered by such registration statement.
(rb) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder Holder agrees that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5(d)(vi4(a)(vii) hereofor of the commencement of a Blackout Period, such Shareholder will forthwith Holder shall discontinue disposition of Registrable Securities pursuant to the registration statement until such Shareholder's Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), 4(a)(vii) hereof or until it is advised in writing (the "ADVICE") by the Company that the use notice of the Prospectus may be resumedend of the Blackout Period, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectusas applicable, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, such Holder must deliver to the Company all copies (at the Company's expense) including, without limitation, any and all copiesdrafts), other than permanent file copies copies, then in such Shareholder's Holder’s possession, of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such notice. If In the event the Company shall give gives any such notice, the time periods period mentioned in Section 5(c4(a)(i) hereof shall be is extended by the greater of (i) ten (10) business days or (ii) the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(vi4(a)(vii) hereof to and including the date when each Holder of Registrable Securities covered by such Participating Shareholder shall have registration statement has received the copies of the supplemented or amended prospectus contemplated by Section 5(l4(a)(vii) or the Advicehereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fortified Holdings Corp.), Registration Rights Agreement (Aegis Industries, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If Seller is required by the ------------------------ provisions of this Article VII to effect the registration of any Registrable of Purchaser's securities under the Securities be registered pursuant to this AgreementAct, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofSeller will, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to promptly prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement with respect to such securities and cause such registration statement to become and remain effective for a period of time required for the relevant Demand Request (which sixty (60) day period may be extended disposition of such securities by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 Holders thereof, and use its reasonable best efforts but not to cause such Registration Statement to become effective; exceed three months from the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationseffective date thereof;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the Registration Statement continuously effective for provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement until the earlier of such time as all such securities have been disposed of in a period public offering or the expiration of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplementthree months, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods of disposition by the Participating Shareholders Holders of such securities set forth in such Registration Statement or registration statement;
(c) furnish to such Holders such number of copies of such registration statement, each amendment and supplement to thereto, and the Prospectusprospectus included in such registration statement (including each preliminary prospectus), all in conformity with the requirements of the Securities Act, and such other documents, as such Holders may reasonably request;
(d) notify such Holders promptly after Seller shall receive notice thereof, of the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by time when such registration statement became effective or when any such Person) confirm such advice in writing, (i) when the Prospectus amendment or supplement to any Prospectus supplement or post-effective amendment prospectus forming a part thereof has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ;
(iie) notify such Holders promptly of any request by the SEC Commission for amendments the amending or supplements to the Registration Statement supplementing of such registration statement or the Prospectus prospectus forming a part thereof or for additional information, ;
(iiif) advise such Holders after Seller shall receive notice or otherwise obtain knowledge of the issuance of any order by the SEC of any stop order Commission suspending the effectiveness of the Registration Statement such registration statement or the initiation amendment thereto or of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose, and (vi) of promptly use its best efforts to prevent the occurrence issuance of any event which makes any statement made in the Registration Statement, the Prospectus stop order 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;
(e) make every reasonable effort to obtain the its withdrawal of any promptly if such stop order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwritersshould be issued;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, qualify such Registrable Securities for offer and sale securities under the such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as each Holder (or any seller underwriter on behalf of such Holder) of such securities shall request (provided that Seller shall not be obligated to qualify as a foreign corporation to do business under the laws of any jurisdiction in which it is not then qualified or underwriter reasonably requests in writing to file any general consent to service of process), and do any such other reasonable acts and all other acts or things necessary or advisable as may be required of it to enable such Holder to consummate the disposition in such jurisdictions jurisdiction of such securities;
(h) furnish on the date that such securities are delivered to underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date that such registration statement becomes effective, (i) an opinion dated such date, of the Registrable Securities independent counsel representing Seller for the purposes of such registration, addressed to such underwriters, if any, and, if such securities are not being sold through underwriters, then to the Holder making such request, in customary form and covering matters of the type customarily covered in such legal opinions and (ii) a comfort letter dated such date, from the independent certified public accountants of Seller, addressed to such underwriters, if any, and, if such securities are not being sold through underwriters, then to the Holder making such request in a customary form and covering matters of the type customarily covered by such comfort letters as such underwriters or such Holder, as the Registration Statement; provided that case may be, shall reasonably request;
(i) enter into customary agreements (including one or more underwriting agreements in customary form) and take such other actions as are reasonably required or reasonably requested by such Holders or any underwriter on behalf thereof in order to expedite or facilitate the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service disposition of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sosecurities;
(j) cooperate use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, but not later than 18 months after the effective date of such registration statement, an earnings statement covering the period of at least 12 months beginning with the Participating Shareholders and first full month after the managing underwriterseffective date of such registration statement, if anywhich earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act (including, to facilitate at the timely preparation and delivery option of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwritersSeller, Rule 158);
(k) use its reasonable best efforts notify such Holders at any time when a prospectus relating to cause the Registrable Securities covered by the Registration Statement such registration statement is required to be registered with or approved by such other governmental agencies or authorities within delivered under the United States as may be necessary to enable Securities Act, of the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) aboveas a result of which such registration statement contains an untrue statement of material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any such Holder, prepare a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such registration statement so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus that such registration statement 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;
(ml) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement shares of Common Stock being so registered to be listed on the Nasdaq National Market and each other securities exchange on which similar securities issued by the Company Seller are then listed if requested by Shareholder or the managing underwritersor, if any;similar securities are not then listed, take all reasonable action either to list such shares on a securities exchange or to facilitate the trading of the securities on the Nasdaq National Market; and
(nm) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition shares of such Registrable Securities and in such connection, whether or Common Stock being so registered not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements such registration statement. It shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish be a condition precedent to the Company such information and documents regarding obligation of Seller to take any action pursuant to this Article VII in respect of the Participating Shareholders and securities which are to be registered at the distribution request of any Holder of the Registrable Securities that such Holder shall furnish to Seller such information regarding the securities held by such Holder and the intended method of disposition thereof as the Company may from time to time Seller shall reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) hereof as shall be extended required in connection with the action taken by the number of days during the period from and including the date of the giving of Seller. Seller may reasonably rely upon any such notice pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated information so furnished by Section 5(l) or the Advicea Holder.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (International Computex Inc), Common Stock Purchase Agreement (International Computex Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In connection with the registration obligations of the Company pursuant to the terms and conditions of this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleshall:
(a) with respect prior to a request to file filing a Registration Statement covering Registrable Securities made pursuant to Article 3or Prospectus or any amendments or supplements thereto, use its reasonable best efforts to prepare and file with including documents incorporated by reference after the SEC not later than sixty (60) days after receipt initial filing of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transactionRegistration Statement, the Company is not in a position will furnish to timely prepare and file the Holder covered by such Registration Statement (the "Selling Holder"), Holders' Counsel and the underwriters, if any, draft copies of all such documents proposed to be filed at least three (3) Business Days prior thereto, which documents will be subject to the review of such Holder’s Counsel and the underwriters, if any, and the Company furnishes to each Shareholder participatingwill not, or electing to participateunless required by law, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders Selling Holder (the "Objecting Party") shall object, pursuant to notice given to the Company prior to the filing of such amendment or supplement (the underwriters, if any, "Objection Notice"). The Objection Notice shall reasonably object set forth the objections and the specific areas in light the draft documents where such objections arise. The Company shall have five (5) Business Days after receipt of the requirements Objection Notice to correct such deficiencies to the satisfaction of the Securities Act Objecting Party, and will notify the Selling Holder of any stop order issued or any other applicable laws threatened by the Commission in connection therewith and take all reasonable actions required to prevent the entry of such stop order or regulationsto remove it if entered;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, promptly as practicable prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the such Registration Statement continuously effective for a the period of not less than ninety (90) daysrequired pursuant to Section 2; cause the Prospectus to be supplemented by any required Prospectus supplement, and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders Selling Holders set forth in such Registration Statement or supplement to the Prospectus;
(dc) notify the Participating Shareholders as promptly as practicable furnish to any Selling Holder and the managing underwriters, if any, promptlywithout charge, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus number 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, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide conformed copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements thereto and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable such number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectusProspectus) and any amendment amendments or supplement thereto supplements thereto, and any documents incorporated by reference therein, as such Persons Selling Holder or underwriter may reasonably request; request in order to facilitate the disposition of the Registrable Securities being sold by such Selling Holder (it being understood that the Company consents to the use of the Prospectus or and any amendment or supplement thereto by the Participating Shareholders each Selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto); provided, that before filing a Registration Statement or Prospectus relating to the Registrable Securities or any amendments or supplements thereto, the Company will furnish to Holders' Counsel copies of all documents proposed to be filed at least three (3) Business Days prior to the filing thereof, which documents will be subject to the review of such counsel;
(id) on or prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 such jurisdictions as any seller Selling Holder, Holders' Counsel or underwriter reasonably requests and do any and all other acts and things which may be necessary or advisable to enable such Selling Holder to consummate the disposition in writing such jurisdictions of such Registrable Securities owned by such Selling Holder; keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective; and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided that the Company will shall not be required to (i) qualify generally to do business as a foreign corporation or as a broker-dealer in any jurisdiction where it is not then so qualified or to (ii) take any action which would subject it to general service of process or taxes to taxation in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(je) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the such Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof or the underwriters, if any, Selling Holders to consummate the disposition of such Registrable Securities;
(lf) upon as promptly as practicable notify the occurrence of Holder, ▇▇▇▇▇▇’s Counsel and any event contemplated underwriter and (if requested by paragraph any such Person) confirm such notice in writing, (d)(vii) above, prepare when a Prospectus or any Prospectus supplement or post-effective Amendment amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information to be included in any Registration Statement or Prospectus or otherwise, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose and (v) of the happening of any event which makes any statement made in a Registration Statement or related Prospectus or any document incorporated therein or deemed to be incorporated by reference therein untrue or file which requires the making of any other required document changes in such Registration Statement, Prospectus or documents so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus that they will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and, as promptly as practicable thereafter, prepare and file with the Commission 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;
(mg) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) 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, the Holders an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act, Act no later than forty-five thirty (4530) days after the end of any twelve (12)-month the 12-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement;
(h) use its reasonable efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement, which statements shall cover said twelve (12)-month periods; and, if one is issued, to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment;
(ri) take such other reasonable steps that are necessary or advisable to permit as promptly as practicable after filing with the sale Commission of any document which is incorporated by reference into a Registration Statement, deliver a copy of such Registrable Securities. The Company document to Holders' Counsel;
(j) cooperate with the Selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends and shall be in a form eligible for deposit with the Depository Trust Company) representing securities sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such Selling Holders may require the Participating Shareholders to furnish request and make available prior to the Company effectiveness of such information and documents regarding the Participating Shareholders and the distribution Registration Statement a supply of the Registrable Securities as the Company may from time to time reasonably request in writing. such certificates; Each Shareholder agrees thatSelling Holder, upon receipt of any notice from the Company of the happening of any event of the kind described in subsection (f) of this Section 5(d)(vi) hereof3, such Shareholder will shall forthwith discontinue disposition of the Registrable Securities until such ShareholderSelling Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by subsection (f) of this Section 5(l), 2 or until it is advised in writing (the "ADVICEAdvice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder such Selling Holder will, or will request the underwriters managing underwriter or underwriters, if any, to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such ShareholderSelling Holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If In the event that the Company shall give any such notice, the time periods mentioned in for which a Registration Statement is required to be kept effective pursuant to Section 5(c) 2 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(d)(vi) to and including the date when such Participating Shareholder each Selling Holder shall have received (i) the copies of the supplemented or amended prospectus Prospectus contemplated by Section 5(l2(f) or (ii) the Advice.
Appears in 2 contracts
Sources: Grant of Immediate Registration Rights (Signalife, Inc.), Grant of Immediate Registration Rights (Signalife, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Section 2.2 and, as applicable, 2.3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty the registration statement, or amendments thereto, to effect such registration (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60) days if at Securities Act or the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare rules and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file SEC, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.2); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the Holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the “Registration Maintenance Period”);
(iii) furnish to each Holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Holder;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement during registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. Holder shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such Holder to consummate the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement jurisdictions of the 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 wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or supplement to the Prospectusconsent to general service of process in any such jurisdiction;
(dv) notify use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Shareholders U.S. Holder thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each Holder a signed counterpart, addressed to such Holder, and the managing underwriters, if any, promptlyof an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such Holder) including that the prospectus and any prospectus supplement forming a part of the registration statement does not contain an untrue statement of a material fact or omit a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(if requested by any such Personvii) notify the Holder and its counsel promptly and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(iA) when the Prospectus registration statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the registration statement has been filed, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(viii) notify each Holder of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and at the request of any such Holder promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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;
(eix) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement registration statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qx) otherwise use its commercially 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, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five Act and Rule 158 thereunder;
(45xi) days after enter into such agreements and take such other actions as the end of any twelve Holders shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting Investors) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rxii) take use its commercially reasonable best efforts to list or otherwise qualify for trading all Registrable Securities covered by such registration statement on any securities exchange, trading market, quotation system and any other reasonable steps that trading venue on which any of the Company’s securities of the same class as the Registrable Securities are necessary then listed or advisable to permit the sale of such Registrable Securitiesqualified for trading or quotation. The Company may require the Participating Shareholders each Holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such Holder and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Intersearch Group Inc), Investment Agreement (Intersearch Group Inc)
Registration Procedures. Whenever a Shareholder has the parties hereto have requested that any Registrable Securities be registered in a Piggyback Registration pursuant to this AgreementSection 5.1 or a Demand Registration has been requested pursuant to Section 5.2, the Company shall promptly take all such actions as may be necessary or desirable will use its reasonable efforts to permit effect the registration and the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall will as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty Commission a registration statement with respect to such Registrable Securities and thereafter use its reasonable efforts to cause such registration statement to become effective (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in provided that, before filing a material merger, acquisition registration statement or other form of business combination or, if by reason of such transactionprospectus or any amendments or supplements thereto, the Company is not in a position will furnish to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed counsel selected by the president or holders of a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale majority of the Registrable Securities in accordance with the intended method or methods covered by such registration statement copies of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including all such documents incorporated by reference) proposed to be filed, which the Participating Shareholders or the underwriters, if any, shall reasonably object in light documents will be subject to review of the requirements of the Securities Act or any other applicable laws or regulationssuch counsel);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of either (i) not less than ninety six months (90subject to extension pursuant to Section 5.7(b)) days; cause or, if such registration statement relates to an underwritten offering, such longer period as in the Prospectus opinion of counsel for the underwriters a prospectus is required by law to be supplemented delivered in connection with sales of Registrable Securities by an underwriter or dealer or (ii) such shorter period as will terminate when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (but in any event not before the expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) each seller of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening such number of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders registration statement, each amendment and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment supplement 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 the prospectus included in such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons seller may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(id) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction or to take any action which would subject it (iii) consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction);
(je) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the 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 notify each seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) , at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the occurrence discovery of the happening of any event contemplated by paragraph (d)(vi) aboveas a result of which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, at the request of any such seller, the Company will prepare and furnish to such seller a reasonable number of copies of a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(mf) use its reasonable best efforts to cause all such Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other securities exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anylisted;
(ng) provide a transfer agent and registrar for all such Registrable SecuritiesSecurities not later than the effective date of such registration statement;
(oh) enter into such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as Participating Shareholders the holders of a majority of the Registrable Securities being sold or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during effecting a customary lock-up period) and confirm the accuracy stock split or a combination of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereundershares);
(pi) make available for inspection during normal business hours by the Participating Shareholdersany seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders 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 directors, employees and employees independent accountants to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qj) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months beginning with the first day of the Company's first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five Act and Rule 158 thereunder;
(45k) days after in the end event of the issuance of any twelve (12)-month period (i) commencing at stop order suspending the end effectiveness of a registration statement, or of any fiscal quarter order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in which such registration statement for sale in any jurisdiction, the Company will use its reasonable efforts promptly to obtain the withdrawal of such order;
(l) obtain a cold comfort letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the Company's independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities are being sold to underwriters in reasonably request (provided that such Registrable Securities constitute at least 10% of the securities covered by such registration statement); and
(m) provide a firm or best efforts underwriting offering, and (ii) beginning with the first month legal opinion of the Company's first fiscal quarter commencing after outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the Registration Statementdate of the closing under the underwriting agreement), which statements shall cover said twelve with respect to the registration statement, each amendment and supplement thereto, the prospectus included herein (12)-month periods; and
(rincluding the preliminary prospectus) take and such other reasonable steps that are necessary or advisable to permit documents relating thereto in customary form and covering such matters of the sale type customarily covered by legal opinions of such Registrable Securitiesnature. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Shareholders Agreement (Tanner Chemicals Inc), Shareholder Agreement (Sovereign Specialty Chemicals Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this Agreement, If and whenever the Company shall promptly take all such actions as may be necessary or desirable is required by the provisions of this Agreement to permit the sale effect a registration of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleSecurities:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to The Company shall prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at SEC, within the time of such request the Company is engaged in negotiations in anticipation of its participation in a material mergerperiods specified herein, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a Form S-3 or its equivalent (or on such other registration form for which the Company then qualifies which is satisfactory available to the Company and that permits the Participating Shareholders (unless greatest extent of incorporation by reference of materials filed by the offering Company under the Exchange Act or, if no incorporation by reference is made on an underwritten basispermitted, including on a best efforts underwriting basis, in which event any form then available to the managing underwriter or underwriters may 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 thereofCompany), and will use its reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file effective as promptly as practicable (and, in any Registration Statement pursuant event, within sixty days) thereafter and to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 90 days after such Registration Statement becomes effective, in the case of registrations pursuant to Section 2, or (2) 180 days after such Registration Statement becomes effective, in the case of registrations pursuant to Section 3, in every case as any other applicable laws such period may be extended pursuant to subsection (h) or regulations;Section 8.
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the The Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective for a such period of not less than ninety time required by subsection (90) days; cause the Prospectus to a), as such period may be supplemented by any required Prospectus supplement, and as so supplemented to be filed extended pursuant to Rule 424 under the Securities Act; and subsection (h) or Section 8.
(c) The Company shall comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in during which any such Registration Statement or supplement is required to the Prospectus;be effective.
(d) notify The Company shall furnish to any Holder whose Registrable Securities are being registered hereunder and any underwriter of Registrable Securities
(1) such number of copies (including manually executed and conformed copies) of such Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of the Participating Shareholders prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and the managing underwritersfinal prospectus and including prospectus supplements), and (3) such number of copies of other documents, in each case as such Holder or such underwriter may reasonably request.
(e) The Company shall use its best efforts to register or qualify all Registrable Securities covered by such Registration Statement under the securities or "blue sky" laws of such states of the United States as any Holder whose Registrable Securities are being registered or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; but the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject.
(f) The Company shall use its best efforts to cause the Registrable Securities covered by such Registration Statement to be registered with, or approved by, such other United States public, governmental or regulatory authorities, if any, promptlyas may be required in connection with the disposition of such Registrable Securities.
(g) The Company shall list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, and the Nasdaq National Market System) on which any securities of the Company are then listed.
(h) The Company shall notify the Holders' Agent as promptly as practicable and, if requested by any such Person) Holders' Agent, confirm such advice notification in writing, (i1) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment thereto has been filed with and declared effective by the same has become effectiveSEC, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii2) of the issuance by the SEC of any stop order suspending or the effectiveness coming to its knowledge of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v3) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi4) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the a Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of related prospectus so that such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder (through the Holders' Agent) 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 to make the statements therein, in light of the circumstances under which they are made, not misleading;
), and (m5) use its reasonable best efforts of the Company's determination that the filing of a post-effective amendment to cause all a Registration Statement shall be necessary or appropriate. Upon the receipt by the Holders' Agent of any notice from the Company of the occurrence of any event of the kind described in clause (4), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities covered by pursuant to the Registration Statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be listed on the Nasdaq National Market and each other exchange on which similar securities issued effective shall be extended by the Company are then listed if requested by Shareholder or number of days from and including the managing underwritersdate such notice is provided, if any;to and including the date when Holders shall have received copies of the corrected prospectus.
(ni) provide a transfer agent and registrar for all Registrable Securities;
(o) The Company shall enter into such agreements (including an underwriting agreement) and take all such other appropriate actions in connection therewith as Participating Shareholders or the managing underwriters, if any, are customary and reasonably request in order necessary to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connectionthat regard, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties deliver to the Participating Shareholders Holders such documents and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters certificates as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters Holders of a majority of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered intoRegistrable Securities being sold or, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and applicable, the managing underwriters, if any, to evidence the Company's compliance with clause (i) above and with any customary conditions contained this Agreement, including, 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 case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the extent required thereunder;
(p) make available for inspection during normal business hours by managing underwriters an accountants' comfort letter substantially similar in scope to that customarily delivered in an underwritten public offering and covering audited and interim financial statements included in the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorneyor if such letter can not be obtained through the exercise of commercially reasonable efforts, accountant or other agent retained by cause its independent accountants to deliver to the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders financial statements included or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (registration statement at the Company's expense) all copies, other than permanent file copies highest level permitted to be given by such accountants under the then in such Shareholder's possession, applicable standards of the Prospectus covering American Institute of Certified Public Accountants with respect to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pegasus Communications Corp), Registration Rights Agreement (Pegasus Communications Corp)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 5.1, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, 5.2 and pursuant thereto 5.3 the Company shall as expeditiously promptly as possible:practicable (in each case, to the extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare SEC and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review and comment of such counsel (it being understood that counsel to the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (x) in the case of a Demand Registration Statement pursuant to Section 5.1, the expiration of 60 days after such registration statement becomes effective, (y) in the case of a Piggyback Registration pursuant to Section 5.2, the expiration of 60 days after such registration statement becomes effective or supplement (z) in the case of a Shelf Registration pursuant to Section 5.3, the ProspectusShelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) 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 Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that the Company 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 or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) obtain for each Selling Holder and any underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and/or underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(A) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC or any of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(ivD) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(oE) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding Proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holdersSelling Holders, as promptly as practicable, an earnings statements satisfying statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, no later than forty-five however, that the Company shall not be required to serve as such “market maker”;
(45xiv) days after cooperate with any Selling Holder and any underwriters and the end managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any twelve restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, if necessary or appropriate;
(12)-month period (ixv) commencing have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the end of case may be, take other actions to obtain ratings for any fiscal quarter in which Registrable Securities (if they are sold eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in a firm or best efforts underwriting the offering, and marketing or selling of the Registrable Securities;
(iixvi) beginning with the first month have appropriate officers of the Company's first fiscal quarter commencing after the effective date , and cause representatives of the Registration StatementCompany’s independent registered public accountants, which statements shall cover said twelve to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(12)-month periodsxvii) if requested by any underwriter or the Majority Stockholders, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities and file or cause the filing of any registration statement under the Securities Act;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act;
(xxii) cause any officer of the Company to participate fully in the sale process in a manner customary for persons in like positions and consistent with his or her other duties with the Company, including the preparation of the registration statement and the preparation and presentation of any road shows and other investor meetings; and
(rxxiii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxii) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement. Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(b) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof5.6(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.the
Appears in 2 contracts
Sources: Investor Rights Agreement (Chewy, Inc.), Investor Rights Agreement (Chewy, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the 1933 Act as provided in Section 2.2 and, as applicable, 2.3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty the Registration Statement, or amendments thereto, to effect such registration (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial REGISTRATION RIGHTS AGREEMENT BETWEEN ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. AND CERTAIN INVESTORS PAGE 5 OF 19 statements as may be extended required by the Company for up to an additional sixty (60) days if at 1933 Act or the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare rules and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file SEC, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.2); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive Trading Days or an aggregate of 20 Trading Days during each year (each a "BLACK-OUT PERIOD")) or such time as all of the securities which are the ---------------- subject of such registration statement cease to be Registrable Securities (such period, in each case, the "REGISTRATION MAINTENANCE PERIOD"); ---------------------------------
(iii) furnish to each holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the 1933 Act, in conformity with the requirements of the 1933 Act, and such other documents, as such holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement during registration statement under such other securities laws or blue sky laws as any holder of Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such holder of Registrable Securities to consummate the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement jurisdictions of the securities owned by such holder of Registrable Securities, 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 wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or supplement to the Prospectusconsent to general service of process in any such jurisdiction;
(dv) notify use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by REGISTRATION RIGHTS AGREEMENT BETWEEN ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. AND CERTAIN INVESTORS PAGE 6 OF 19 such other governmental agencies or authorities as may be necessary to enable the Participating Shareholders holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each holder of Registrable Securities a signed counterpart, addressed to such holder of Registrable Securities, and the managing underwriters, if any, promptlyof an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(if requested by any such Personvii) notify the Investor and its counsel promptly and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(iA) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-post- effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(viii) notify each holder of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence 1933 Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and at the request of any such holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amendment of such REGISTRATION RIGHTS AGREEMENT BETWEEN ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. AND CERTAIN INVESTORS PAGE 7 OF 19 prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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;
(eix) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qx) otherwise use its commercially 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, an earnings statements satisfying statement covering the provisions period of Section 11(a) of the Securities Actat least twelve months, no later but not more than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offeringeighteen months, and (ii) beginning with the first full calendar month of the Company's first fiscal quarter commencing after the effective date of the Registration Statementsuch registration statement, which statements earnings statement shall cover said twelve satisfy the provisions of Section 1 l(a) of the 1933 Act and Rule 158 thereunder;
(12)-month periodsxi) enter into such agreements and take such other actions as the Investors shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to expedite or facilitate the disposition of such Registrable Securities; and
(rxii) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such holder of Registrable Securities and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Entech Environmental Technologies Inc), Registration Rights Agreement (Entech Environmental Technologies Inc)
Registration Procedures. Whenever It shall be a Shareholder has requested that condition precedent to the obligations of the Company and any Registrable Securities be registered underwriter or underwriters to take any action pursuant to this AgreementArticle II that each Holder requesting inclusion in any Piggyback Underwritten Offering or Demand Registration (a “Registration”) shall furnish to the Company such information regarding such Holder, the Registrable Shares held by it, the intended method of disposition of such Registrable Shares, and such agreements regarding indemnification, disposition of such securities and other matters referred to in this Article II as the Company shall reasonably request and as shall be reasonably required in connection with the action to be taken by the Company; provided that (x) no Holder shall be required to make any representations or warranties to, or agreements with, the Company other than representations and warranties regarding such Holder and such Holder’s ownership of and title to the Registrable Shares to be sold in such offering and its intended method of distribution and (y) any liability of any such Holder under any underwriting agreement relating to such Registration shall promptly take all be limited to liability arising from breach of its representations and warranties therein and shall be limited to an amount equal to the net amount received by such actions as may be necessary or desirable to permit Holder from the sale of Registrable Shares pursuant to such Registration. With respect to any Registration which includes Registrable Securities in accordance with the intended method or methods of disposition thereofShares held by a Holder, and pursuant thereto the Company shall as expeditiously as possibleshall, subject to Sections 2.01 through 2.04:
(a) in accordance with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3the 1933 Act, use its reasonable best efforts to as soon as reasonably practicable, prepare and file with the SEC not later than sixty Commission within (60x) days after receipt thirty (30) days, in the case of a Form S-1, or (y) within fifteen (15) days, in the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time case of a Form S-3, of such request the Company is engaged in negotiations in anticipation of its participation in for registration by a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration Holder of Registrable Securities (Shares, a registration statement on the "PARTICIPATING SHAREHOLDER") a certificate signed appropriate form prescribed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, Commission and use its reasonable best efforts to cause such Registration Statement registration statement to become effectiveeffective as soon as practicable thereafter; provided that the Company shall not file any be obligated to maintain such Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which effective for a period longer than the Participating Shareholders or the underwritersEffectiveness Period; provided, if anyfurther, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder the Holders covered by such registration statement and the underwriter or underwriters, if any, copies of or drafts of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, reasonable review of such Holders and any underwriters named therein. Each Holder will have the opportunity to object to any information pertaining to such Holder that is contained therein and the Company shall will make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be corrections reasonably requested by such Participating Shareholders and Holder with respect to such information prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto; provided, however, that the managing underwriter Company will not include any information pertaining to the Holders in any registration statement or underwriters, if anyamendment thereto or any prospectus or any supplement thereto to which Holders of a majority of the Registrable Shares covered by such registration statement shall reasonably object;
(c) subject to paragraph (b) abovein accordance with the 1933 Act, prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement such registration statement and any documents required to be incorporated by reference therein as may be necessary to keep the Registration Statement continuously registration statement effective for a period of not less than ninety the Effectiveness Period (90but not prior to the expiration of the time period referred to in Section 4(3) daysof the 1933 Act and Rule 174 thereunder, if applicable); cause the Prospectus prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities 1933 Act; and comply with the provisions of the Securities 1933 Act applicable to it with respect to the disposition of all securities Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) covered by such Registration Statement registration statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement registration statement or supplement to the Prospectusprospectus;
(c) furnish to such Holder, without charge, such number of conformed copies of the registration statement and any post-effective amendment thereto, as such Holder may reasonably request, and such number of copies of the prospectus (including each preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein as the Holder or underwriter or underwriters, if any, may request in order to facilitate the disposition of the securities being sold by such Holder (it being understood that the Company consents in writing to the use of the prospectus and any amendment or supplement thereto by the Holder covered by the registration statement and the underwriter or underwriters, if any, in connection with the offering and sale of the securities covered by the prospectus or any amendments or supplements thereto);
(d) promptly notify such Holder, at any time when a prospectus relating thereto is required to be delivered under the Participating Shareholders 1933 Act, when the Company becomes aware of the happening of any event as a result of which the prospectus included in such registration statement (as then in effect) contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein (in the case of the prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the investors of such 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 (and the managing underwritersEffectiveness Period of the registration statement may be extended by the number of days from and including the date such notice is given to the date such supplement or amendment to such prospectus has been delivered under this Section 2.05(d));
(e) in the case of an underwritten offering, enter into and perform such customary agreements (including underwriting agreements in customary form) and make members of senior management of the Company available on a basis reasonably requested by the underwriters to participate in “road show”, analyst and investor presentations and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares)) and cause to be delivered to the underwriters opinions of counsel to the Company (and, if anysuch registration statement includes an underwritten public offering, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when dated the Prospectus or any Prospectus supplement or post-effective amendment has been filed, anddate of the closing under the underwritten agreement), with respect to the Registration Statement registration statement, each supplement and amendment thereto, the prospectus included therein (including the preliminary prospectus) and such other documents related thereto in customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may reasonably request and addressed to the underwriters;
(f) in the case of an underwritten offering, make available, for inspection by any seller of Registrable Shares, any underwriter participating in any disposition pursuant to a registration statement, and any attorney, accountant or other agent retained by any post-effective amendmentsuch seller or underwriter, when all financial and other records, pertinent corporate documents of the same has become effectiveCompany, and cause the Company’s officers, directors, managers, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent that are necessary to be reviewed by such person in connection with the preparation of such registration statement;
(iig) in the case of an underwritten offering, if requested, cause to be delivered, at the time of the pricing of an underwritten offering and at the time of delivery of any request Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) sold pursuant thereto, “comfort” letters from the Company’s independent certified public accountants addressed to each underwriter, if any, in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be;
(h) provide a transfer agent and registrar for all such Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) and provide a CUSIP number for all such Registrable Shares or Common Shares, in each case, not later than the effective date of the registration statement;
(i) use reasonable best efforts to cause all securities included in such registration statement to be listed, by the SEC for amendments date of the first sale of securities pursuant to such registration statement, on any national securities exchange, quotation system or supplements other market on which the Common Shares are then listed or proposed to be listed by the Registration Statement or Company;
(j) make generally available to its security holders an earnings statement, which need not be audited, satisfying the Prospectus or for additional information, (iiiprovisions of Section 11(a) of the issuance 1933 Act and Rule 158 thereunder as soon as reasonably practicable after the end of the twelve (12) month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the registration statement, which statement shall cover said twelve (12) month period;
(k) after the filing of a registration statement, (i) promptly notify each Holder covered by the SEC such registration statement of any stop order suspending issued or, to the effectiveness of Company’s knowledge, threatened by the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true Commission and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) for sale in under the applicable securities or blue sky laws of any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (viii) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every take all reasonable effort actions to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement registration statement or the qualification of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) at the earliest possible moment;
(fl) subject to the time limitations specified in paragraph (b) above, if requested by the managing underwriter or underwriters or such Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters or the Holder reasonably requests to be included therein, including, without limitation, with respect to the number of shares being sold by the Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any term of the underwritten offering of the securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(m) as promptly as practicable after filing with the SEC Commission of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)a registration statement covering such Holder, provide copies deliver a copy of such document to counsel to such Holder unless such document is available on the Participating Shareholders and to the managing underwritersCommission’s ▇▇▇▇▇ system (or any successor electronic filing system);
(gn) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment on or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement registration statement is declared effective, use its reasonable best efforts to register or qualify, or and cooperate with such Holder, the Participating Shareholders and the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities the securities covered by the registration statement for offer and sale under the securities or blue sky laws of such jurisdictions each state and other jurisdiction of the United States as any seller the Holder or managing underwriter reasonably or underwriters, if any, requests in writing and writing, to use reasonable best efforts to keep each such Registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Securities Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) covered by the Registration Statementapplicable 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 qualified, subject itself to taxation in any such jurisdiction or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(jo) cooperate with the Participating Shareholders such 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 legends; ) representing securities to be sold under the registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or underwriters, if any, may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwritersrequest;
(kp) use its reasonable best efforts to cooperate and assist in any filings required to be made with FINRA;
(q) use reasonable best efforts to cause the Registrable Securities securities covered by the Registration Statement registration statement to be registered with or approved by such other governmental agencies agencies, authorities or authorities self-regulatory bodies within the United States as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable SecuritiesShares;
(lr) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or extent the Prospectus or Company is a well-known seasoned issuer (within the meaning of Rule 405 under the 1933 Act) (“WKSI”) at the time any document incorporated therein by reference or file any other required document so that, as thereafter delivered Request Notice is submitted to the purchasers of Company pursuant to Section 2.02 which requests that the Company file an automatic shelf registration statement (as defined in Rule 405 under the 1933 Act) (an “automatic shelf registration statement”) on a Shelf Registration Statement, the Company shall file an automatic shelf registration statement that covers those Registrable Shares which are requested to be registered. If the Company does not pay the filing fee covering Registrable Shares at the time the automatic shelf registration statement is filed, the Company agrees to pay such fee at such time or times as the Registrable SecuritiesShares are to be sold. If the Company files an automatic shelf registration statement covering any Registrable Shares, 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;
(m) it shall use its reasonable best efforts to cause all remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the 1933 Act)) during the period during which such automatic shelf registration statement is required to remain effective. If an automatic shelf registration statement has been outstanding for at least three (3) years, at the end of the third year, refile a new automatic shelf registration statement covering the Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by Shares, and, if at any time when the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order is required 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lockre-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) evaluate its WKSI status the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwritersdetermines that it is not a WKSI, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules refile on Form S-3 (or any successor form) and, if such form is not available, Form S-1 and regulations of keep such registration statement effective during the SEC, and make generally available period during which such registration statement is required to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsbe kept effective; and
(rs) take such other reasonable steps that are actions and deliver such other documents and instruments as may be reasonably necessary or advisable to permit facilitate the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information registration and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised Shares (including Common Shares 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, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.connection with a Synthetic Second
Appears in 2 contracts
Sources: Registration Rights Agreement (Duck Creek Technologies, Inc.), Registration Rights Agreement (Duck Creek Technologies, Inc.)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 4.1, 4.2 and 4.3, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities that are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating to such securities; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities that are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review of and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested comment by such Participating Shareholders counsel (it being understood that counsel to the Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Shareholders who made a request to the Company to provide for a third party “market maker” for the Common Shares; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders sellers and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such sellers may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cause the Registrable Securities covered cooperate as reasonably requested by the Registration Statement to be registered with Selling Holders and the underwriters in the offering, marketing or approved by such other governmental agencies or authorities within selling of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lxvi) upon if requested by any Selling Holders or any underwriter, promptly incorporate in the occurrence of registration statement or any event contemplated by paragraph (d)(vi) aboveprospectus, prepare pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxvii) enter into such agreements (including an underwriting agreement) cooperate and take all such other actions assist in connection therewith as Participating Shareholders or any filings required to be made with the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities FINRA and in such connection, whether or not an underwriting agreement the performance of any due diligence investigation by any underwriter that is entered into required to be undertaken in accordance with the rules and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities ActFINRA; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;and
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxviii) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common shares in underwriting agreements with respect to offerings of common shares for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof4.5(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE"4.5(a)(ix) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (Company, at the Company's ’s expense) , all copies, other than permanent file copies copies, then in such Shareholder's possession, Selling Holder’s possession of the Prospectus covering such Registrable Securities prospectus current at the time of receipt of such noticenotice relating to such Registrable Securities. If In the event the Company shall give such notice, the time periods mentioned in Section 5(c) hereof any applicable 60 day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of such a notice pursuant to regarding the happening of an event of the kind described in Section 5(d)(vi4.5(a)(ix) to and including the date when all such Participating Shareholder Selling Holders shall have received the copies of the receive such a supplemented or amended prospectus contemplated by Section 5(l) or and such prospectus shall have been filed with the AdviceCommission.
Appears in 2 contracts
Sources: Shareholder Agreement (SeaCube Container Leasing Ltd.), Shareholder Agreement (SeaCube Container Leasing Ltd.)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this AgreementIn connection with the Company's registration obligations hereunder, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleshall:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare Prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission such amendments, including post-effective amendments, to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, Prospectus used in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than ninety the Effectiveness Period; (90ii) days; cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 under the Securities Act; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto and provide as promptly as reasonably possible to Investor true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Company may excise any information contained therein which would constitute material non-public information as to Investor); and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act of 1934, as amended (the "Exchange Act") with respect to the disposition of all securities Registrable Securities covered by such a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Participating Shareholders Investor set forth in such Registration Statement as so amended or supplement to the Prospectus;in such Prospectus as so supplemented.
(db) notify If during the Participating Shareholders Effectiveness Period the Company becomes eligible to file a Registration Statement on Form S-3 under the Securities Act (“Form S-3”), the Company shall promptly convert the Initial Registration Statement and any Follow-On Registration Statement, as applicable, to a Form S-3.
(c) Notify each Investor (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the managing underwritersuse of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, if anyin the case of (i)(A) below, promptly, not less than one (1) Business Day prior to such filing) and (if requested by any such Person) confirm such advice notice in writing, writing no later than one (i1) Business Day following the day (i)(A) when the a Prospectus or any Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and(B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC Commission or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the Prospectus or for additional informationProspectus, (iii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order “stop-order” suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings Proceedings for that purpose, ; (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding Proceeding for such purpose; (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (vi) of the occurrence or existence of any event which makes any statement made pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that, any and all of such information shall remain confidential to Investor until such information otherwise becomes public, unless disclosure by Investor is required by law; provided, further, that notwithstanding Investor's agreement to keep such information confidential, Investor makes no acknowledgement that any such information is material, non-public information.
(d) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension of the Prospectus qualification (or any document incorporated therein by reference untrue or which requires the making exemption from qualification) of any changes of the Registrable Securities for sale in any jurisdiction, at the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;earliest practicable moment.
(e) make every reasonable effort Furnish to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriterInvestor, without charge, at least one signed conformed copy of the each such Registration Statement and any post-effective each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) and a reasonable number promptly after the filing of conformed copies of all such documents;documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(hf) deliver Subject to the Participating Shareholders and the underwritersterms of this Agreement, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, Investor in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any amendment or supplement thereto;, except after the giving of any notice pursuant to Section 3(c).
(ig) prior The Company shall cooperate with any broker-dealer through which an Investor proposes to resell its Registrable Securities in effecting a filing with FINRA, as requested by Investor, and the date on which Company shall pay the Registration Statement is declared effectivefiling fee required by such filing within two (2) Business Days of request therefor.
(h) Prior to any resale of Registrable Securities by an Investor, use its commercially reasonable best efforts to register or qualify, qualify or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel each Investor in connection with the registration or qualification of, (or exemption from the Registration or qualification) of such Registrable Securities for offer and sale the resale by an Investor under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller or underwriter an Investor reasonably requests in writing writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the each Registration Statement; provided that 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 qualified, subject the Company to take any action which would subject it to general service of process or taxes material tax in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required subject or file a general consent to qualify such Registrable Securities service of process in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;jurisdiction.
(ji) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon Upon the occurrence of any event contemplated by paragraph (d)(vi) aboveSection 3(c), as promptly as reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective Amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or reference, and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securitiesdelivered, the neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
. If the Company notifies Investor in accordance with clauses (miii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then Investor shall suspend use of such Prospectus. The Company will use its reasonable best efforts to cause all Registrable Securities covered by ensure that the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy use of the same if and when requested, and matters relating Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the compliance availability of the a Registration Statement and the Prospectus with the Securities Act; for a period not to exceed ninety (ii90) obtain opinions of counsel to the Company, and updates thereof calendar days (which counsel and opinions need not be consecutive days) in any twelve (in form, scope and substance12) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;month period.
(pj) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply Comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; andCommission.
(rk) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each Investor to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such information Investor and, if required by the Commission, the natural persons thereof that have voting and documents regarding dispositive control over the Participating Shareholders and shares. During any periods that the distribution Company is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities as the Company may from time solely because Investor fails to time reasonably request in writing. Each Shareholder agrees that, upon receipt furnish such information within three (3) Business Days of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicerequest.
Appears in 2 contracts
Sources: Subscription Agreement, Registration Rights Agreement (SolarWindow Technologies, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If the Company is required by the provisions of Section 2 or 3 to use its reasonable efforts to effect the registration of any Registrable of its securities under the Securities be registered pursuant to this AgreementAct, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofwill, and pursuant thereto the Company shall as expeditiously as is reasonably possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory with respect to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, such securities and use its reasonable best efforts to cause such Registration Statement promptly to become effectiveand remain effective for a period of time required for the disposition of such Securities by the holders thereof but not to exceed 60 days (except with respect to a Shelf Registration Statement which shall remain effective as set forth in Section 2(c)); provided, however, that before filing such registration statement or any amendments thereto (for purposes of this subsection, amendments shall not be deemed to include any filing that the Company is required to make pursuant to the Exchange Act), the Company shall furnish the Selling Holders and the representatives referred to in Section 5(n) copies of all documents proposed to be filed, which documents will be subject to the review of such counsel. The Company shall not file any be deemed to have used its reasonable efforts to keep a Registration Statement pursuant effective during the applicable period if it voluntarily takes any action that would result in the Holders of such Registrable Securities not being able to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including sell such documents incorporated by reference) to which the Participating Shareholders or the underwritersRegistrable Securities during that period, if any, shall reasonably object in light of the requirements of the Securities Act or any other unless such action is required under applicable laws or regulationslaw;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement (or additional Registration Statements as provided in Section 2(c)) and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement during until the applicable earlier of such time as all of such securities have been disposed of in a public offering or the expiration of 60 days (except with respect to the Shelf Registration Statement, for which such period in accordance with the intended methods of disposition by the Participating Shareholders is set forth in Section 2(c));
(c) furnish to each Selling Holder such number of conformed copies of the applicable Registration Statement and each such amendment and supplement thereto (including in each case all exhibits), and of a summary prospectus or supplement to other prospectus, including a preliminary prospectus, in conformity with the Prospectusrequirements of the Securities Act, and such number of copies of any Issuer Free Writing Prospectus and such other documents, as such Selling Holders may reasonably request;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, securities covered by such Registrable Securities for offer and sale Registration Statement under the such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as any seller Selling Holder or underwriter of such securities shall reasonably requests request (in writing light of the intended plan of distribution of such securities), to keep such registration or qualification in effect for so long as such Registration Statement remains in effect or until all Registrable Securities have been sold (whichever is earlier), and do to take any and all other acts or things action which may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities covered securities owned by the Registration Statement; provided such Selling Holder (provided, however, that the Company will shall not be required in connection therewith or as a condition thereto to qualify generally to do business business, subject itself to taxation in or to file a general consent to service of process in any jurisdiction where wherein it is would not then so qualified or but for the requirements of this paragraph (d) be obligated to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subjectdo so; and provided, further, that the Company will shall not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders any Selling Holder submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up lockup or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders such Holder agrees to do so), and do such other reasonable acts and things as may be required of it to enable such Holder to consummate the disposition in such jurisdiction of the securities covered by such Registration Statement;
(je) cooperate in connection with an underwritten offering, obtain for each underwriter:
(i) an opinion of independent legal counsel for the Participating Shareholders Company, covering the matters customarily covered in opinions requested in underwritten offerings and the managing such other matters as may be reasonably requested by such underwriters, and
(ii) a “comfort” letter signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if anynecessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to facilitate be, included in the timely preparation and delivery registration statement);
(f) use its reasonable efforts to furnish, at the request of certificates representing any Holder requesting registration of Registrable Securities pursuant to be sold and not bearing any restrictive legends; and enable Section 2 or 3, if such Registrable Securities are not being sold through underwriters, on the date that the registration statement with respect to be such shares of Registrable Securities becomes effective, (1) an opinion, dated such date, of the independent legal counsel for the Company for the purpose of such registration, addressed as to such matters as the Holders holding a majority of the Registrable Securities included in such denominations registration may reasonably request; and (2) letters dated such date and the date the offering is priced from the independent registered public accountants who have certified the Company’s financial statements included in such names registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement), addressed to the Holders making such request and, if such accountants refuse to deliver such letters to such Holders, then to the Company (i) stating that they are independent certified public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements and other financial data of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereto, comply as to form in all material respects with the managing underwriters may request at least two applicable accounting requirements of the Securities Act and (2ii) covering such other financial matters (including information as to the period ending not more than five (5) Business Days prior to any sale the date of Registrable Securities such letters) with respect to the underwritersregistration in respect of which such letter is being given as such Holders may reasonably request;
(kg) use its reasonable best efforts to cause enter into customary agreements (including if the Registrable Securities covered method of distribution is by the Registration Statement to be registered with or approved by means of an underwriting, an underwriting agreement in customary form) and take such other governmental agencies actions as are reasonably required in order to expedite or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate facilitate the disposition of such Registrable Securities;
(h) otherwise use its reasonable efforts to comply with all applicable rules and regulations of the SEC, and make earnings statements satisfying the provisions of Section 11(a) of the Securities Act generally available to the Holders no later than 45 days after the end of any twelve-month period (or 90 days, if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in an underwritten public offering, or (ii) if not sold to underwriters in such an offering, beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve-month periods;
(i) use its reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange or quotation system on which similar securities issued by the Company are listed or traded;
(j) give written notice to the Holders:
(i) when such Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to such Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Equity Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in such Registration Statement or the prospectus in order to make the statements therein not misleading (which notice shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made);
(k) use its reasonable efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of such Registration Statement at the earliest possible time;
(l) furnish to each Holder, without charge, at least one copy of such Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits (including those, if any, incorporated by reference);
(m) upon the occurrence of any event contemplated by paragraph (d)(viSection 5(j)(v) above, promptly prepare a supplement or post-effective Amendment amendment to the such Registration Statement or a supplement to the Prospectus or any document incorporated therein by reference related prospectus or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesHolders, the Prospectus prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(m. If the Company notifies the Holders in accordance with Section 5(j)(v) above to suspend the use its of the prospectus until the requisite changes to the prospectus have been made, then the Holders shall suspend use of such prospectus and use their reasonable best efforts to cause return to the Company all Registrable Securities covered copies of such prospectus (at the Company’s expense) other than permanent file copies then in such Holder’s possession, and the period of effectiveness of such Registration Statement provided for above shall be extended by the Registration Statement number of days from and including the date of the giving of such notice to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder date Holders shall have received such amended or the managing underwriters, if anysupplemented prospectus pursuant to this Section 5(m);
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties subject to the Participating Shareholders execution of customary confidentiality agreements satisfactory in form and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel to the Company, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory pursuant to the managing underwriters) addressed to Participating Shareholders and reasonable request of the Selling Holders or applicable underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be make reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholdersany Selling Holders, any underwriter participating in any disposition pursuant to such registration statement, Registration Statement and any attorney, accountant or other agent retained by the Participating Shareholders Selling Holders or any representative of the Selling Holders or any such underwriter, underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's ’s officers, directors and employees to supply all relevant information reasonably requested by the Participating Shareholders such representative or any such underwriter, attorney, accountant or agent in connection with such registration statementthe registration; provided that any records, information or documents that are designated by the Company in writing as confidential such inspection shall be kept confidential by such Persons;done in a manner so as not to disrupt the operation of the Company’s business.
(qo) otherwise use its reasonable best efforts in connection with any underwritten offering pursuant to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold offered by Holders in accordance with Section 2 or 3 hereof, make appropriate officers of the Company available to the Selling Holders (and, in connection with any underwritten offering, the underwriters) for diligence and for meetings with prospective purchasers of the Registrable Securities and prepare and present to potential investors customary “road show” material in each case in accordance with the recommendations of the underwriters and in all respects in a firm or best efforts underwriting offering, and (ii) beginning manner consistent with the first month other new issuances of securities in an offering of a similar size to such offering of the Company's first fiscal quarter commencing after the effective date Registrable Securities, in connection with any proposed sale of the Registration Statement, which statements shall cover said twelve (12)-month periodsRegistrable Securities; and
(rp) take such other use reasonable steps that are necessary efforts to procure the cooperation of the Company’s transfer agent in settling any offering or advisable to permit the sale of such Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Selling Holders or the underwriters. The It shall be a condition precedent to the obligation of the Company may require to take any action pursuant to this Agreement in respect of the Participating Shareholders Registerable Securities which are to be registered at the request of any Holder that such Holder shall furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities held by such Holder and the intended method of disposition thereof as the Company may from time to time shall reasonably request and as shall be required in writing. Each Shareholder agrees that, upon receipt of any notice from connection with the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed action taken by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Subscription Agreement (Azure Power Global LTD), Subscription Agreement (Azure Power Global LTD)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration, qualification or compliance effected by the Company pursuant to this AgreementSection 2, the Company shall promptly take all such actions will keep each Holder advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with each registration, qualification and compliance and as to the intended method or methods of disposition completion thereof, and pursuant thereto . At its expense the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare Prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, securities and use its reasonable best efforts to cause such registration statement to become and remain effective for at least one hundred eighty (180) days or until the distribution described in the Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationshas been completed;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare Prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection with such registration statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance registration statement. **** Certain information has been omitted and filed separately with the intended methods of disposition by Securities and Exchange Commission. Confidential treatment has been requested with respect to the Participating Shareholders set forth omitted portions.
(c) Furnish to the Holders participating in such Registration Statement or supplement registration and to the Prospectus;underwriters of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus, amendments and supplements thereto and such other documents as such Holders and underwriters may reasonably request in order to facilitate the public offering of such securities.
(d) notify Furnish, at the Participating Shareholders and request of any Holder requesting registration of Registrable Securities on the managing underwriters, if any, promptly, and (if requested by any date such Person) confirm such advice Registrable Securities are delivered to the underwriters for sale in writingconnection with a registration pursuant to this Section 2.5, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filedan opinion, anddated such date, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of counsel representing the Company contemplated by paragraph (o) below cease to be true and correct, (v) of for the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies purposes of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if anyregistration, in connection with the offering form and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior substance as is customarily given to the date on which the Registration Statement is declared effectiveunderwriters in an underwritten public offering, use its reasonable best efforts addressed to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale Holders requesting registration of Registrable Securities and (ii) a letter dated such date, from the independent accountants of the Company, in form and substance as is customarily given by independent accountants to the underwriters;
(k) use its reasonable best efforts underwriters in an underwritten public offering, addressed to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, and to consummate the disposition Holders requesting registration of Registrable Securities.
(e) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such Registrable Securities;jurisdiction as shall be reasonably requested by the Holders; provided that the Company shall not be required in connection therein or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(lf) upon In the occurrence event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering.
(g) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event contemplated by paragraph (d)(vi) above, prepare as a supplement or post-effective Amendment to result of which the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so thatprospectus included in such registration statement, as thereafter delivered to the purchasers of the Registrable Securitiesthen in effect, the Prospectus will not contain includes an untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in the light of the circumstances then existing, such obligation to continue for one hundred eighty (180) days.
(mh) use its reasonable best efforts to cause Cause all such Registrable Securities covered by the Registration Statement registered pursuant hereunder to be listed on the Nasdaq National Market and each other securities exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;listed.
(ni) provide Provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) Securities registered pursuant hereunder and take a CUSIP number for all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if anySecurities, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to each case not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of such registration. **** Certain information has been omitted and filed separately with the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable SecuritiesSecurities and Exchange Commission. The Company may require the Participating Shareholders to furnish Confidential treatment has been requested with respect to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceomitted portions.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Yodlee Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of the registration, qualification or compliance effected by the Company pursuant to this Agreement, the Company shall promptly take all such actions will, upon reasonable request, inform each Holder as may be necessary or desirable to permit the sale status of such Registrable Securities registration, qualification and compliance. At its expense, in accordance with the intended method or methods case of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made filed pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition Section 2.1 or other form of business combination or, if by reason of such transactionSection 2.2, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participatingwill, or electing to participate, in during such registration of time as any Holder holds Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 Securities:
2.4.1. use its commercially reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant effective and to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement and any documents required to be incorporated by reference therein as may be necessary to keep the applicable Registration Statement continuously filed and declared effective for a pursuant to this Agreement, and any related qualification or compliance under state securities laws which it is necessary to obtain, effective until the earliest of (A) the date upon which all Registrable Securities cease to be Registrable Securities and (B) the date upon which the Holders have completed the distribution described in such Registration Statement, whichever first occurs (the period of time during which the Company is required hereunder to keep the Registration Statement effective is referred to herein as the “Registration Period”).
2.4.2. at least five (5) Business Days prior to filing a Registration Statement and at least three (3) Business Days prior to the filing of a prospectus or any amendments or supplements to a Registration Statement or a prospectus (but not less than ninety (90) days; cause the Prospectus any periodic report to be supplemented incorporated by any required Prospectus supplementreference in a Registration Statement or a prospectus), and as so supplemented the Company shall furnish to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions Holders of the Registrable 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 Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriter or underwriters, if any, promptlycopies of or drafts of all such documents proposed to be filed, which documents shall be subject to the reasonable review of such Holders and underwriters, if any, and the Company shall use commercially reasonable efforts to satisfy any objections with respect thereto raised by the Selling Holders, or the underwriters, if any;
2.4.3. in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering;
2.4.4. furnish such number of prospectuses and other documents incident thereto as any Holder from time to time may reasonably request to enable such Holder to consummate the disposition of the Registrable Securities owned by such Holder;
2.4.5. use commercially reasonable efforts to timely register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any Holder reasonably requests and do any and all other acts and things which may be reasonably necessary to enable such Holder to consummate the disposition of the Registrable Securities owned by such Holder in such jurisdictions; provided, that the Company will not be required to (if requested by A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.4, (B) subject itself to taxation in any such Personjurisdiction or (C) confirm file a general consent to service of process in any jurisdiction unless the Company is already subject to service in such advice jurisdiction;
2.4.6. notify each Holder of such Registrable Securities as promptly as practicable (A) after becoming aware of the happening of any event as a result of which the Registration Statement, the prospectus included in writingthe Registration Statement, as then in effect, or any prospectus supplement contains 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, (iB) when if the Prospectus or any Prospectus supplement or post-effective amendment has been filedboard of directors of the Company determines, andin the good faith exercise of its business judgment, with respect that the disposition of Registrable Securities pursuant to the Registration Statement would (I) require disclosure of material non-public information concerning the Company which, at such time, is not in the best interest of the Company, or any post-effective amendment(II) otherwise materially and adversely affect the Company or its stockholders because it would (1) materially interfere with a material acquisition, when corporate reorganization, or other similar transaction involving the same Company; (2) require premature disclosure of material information that the Company has become effectivea bona fide business purpose for preserving as confidential; or (3) render the Company unable to comply with requirements under the Securities Act or Exchange Act, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any purpose or the receipt by the Company of written correspondence from the SEC notifying the Company that the SEC may undertake either of the representations foregoing or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vD) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the applicable securities or blue sky laws of any jurisdiction, and notify each Holder of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by when such events or circumstances have ended and the applicable Registration Statement; provided that Statement is again available for use in connection with dispositions of Registrable Securities and, if appropriate, the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, connection therewith prepare a supplement or post-effective Amendment amendment to the prospectus included in the applicable Registration Statement or as promptly as reasonably practicable, but in any event within 60 days of the Prospectus or any document incorporated therein by reference or file any other required document Company’s suspension notice, so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(m) use its , and to take such other commercially reasonable best efforts action as promptly as reasonably practicable as is necessary to cause all Registrable Securities covered by remove a stop order, suspension, written notification from the SEC of the possibility thereof or proceedings related thereto. The Company shall not be permitted to suspend usage of the Registration Statement to be listed on in the Nasdaq National Market and each other exchange on which similar securities issued by case of any event described in clause (A) or (B) of the Company are then listed if requested by Shareholder or the managing underwriters, if anypreceding sentence more than a total of sixty (60) days in any twelve-month period;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition 2.4.7. notify each Holder of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not as promptly as practicable of (A) the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance filing of the Registration Statement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such Registration Statement or any other registration statement or any post-effective amendment thereto, when the same has become effective; and (B) the Prospectus receipt of any written comments from the SEC with respect to any filing referred to in clause (A) and any written request by the SEC for amendments or supplements to the Registration Statement or any prospectus or prospectus supplement thereto;
2.4.8. upon request and subject to appropriate confidentiality arrangements between the parties, furnish to all Holders copies of all transmittal letters or other correspondence with the Securities Act; SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) to the extent related to a Registration Statement filed pursuant to Section 2.1 or Section 2.2;
2.4.9. in the case of an Underwritten Offering, use commercially reasonable efforts to cause to be furnished, upon request of the underwriters, (i) an opinion of counsel for the Company dated the date of the closing under the underwriting agreement and (ii) obtain opinions a “comfort” letter, dated the pricing date of counsel to such Underwritten Offering and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have audited any of the Company’s financial statements included or incorporated by reference into the Registration Statement, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to each of the managing underwriters) addressed to Participating Shareholders opinion and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "“comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to ” letter shall be in customary form and covering cover such matters of with respect to such Registration Statement (and the type prospectus and any prospectus supplement included therein) as such underwriters may reasonably request and which are customarily covered in "comfort" opinions of issuer’s counsel and in accountants’ letters by delivered to the underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures similar Underwritten Offerings of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereundersecurities;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) 2.4.10. otherwise use its commercially 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, an earnings statements satisfying statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 promulgated thereunder;
2.4.11. make available to the appropriate representatives of the Managing Underwriter and Holders access to such information and Company personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act to the extent such defense is available to such person; provided, no that the Company need not disclose any non-public information to any such representative unless and until such representative has entered into a confidentiality agreement with the Company;
2.4.12. provide a transfer agent and registrar for all Registrable Securities covered by such Registration Statement not later than forty-five (45) days after the end effective date of any twelve (12)-month period such Registration Statement;
2.4.13. if requested by a Holder and subject to review by the Company and approval by the Company, such approval not to be unreasonably withheld or delayed, (i) commencing at incorporate in a prospectus supplement or post-effective amendment such information as such Holder reasonably requests to be included therein relating to the end sale and distribution of any fiscal quarter in which Registrable Securities, including information with respect to the number of Registrable Securities are being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold to underwriters in a firm or best efforts underwriting offering, such offering and (ii) beginning with the first month make all required filings of such prospectus supplement or post-effective amendment after being notified of the Company's first fiscal quarter commencing after the matters to be incorporated in such prospectus supplement or post-effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsamendment; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of 2.4.14. cause all such Registrable Securities. The Company may require the Participating Shareholders Securities to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented be listed or amended Prospectus contemplated by Section 5(l), quoted on each securities exchange or until it is advised in writing (the "ADVICE") nationally recognized automated quotation system on which similar securities issued by the Company that the use of the Prospectus may be resumed, and has received copies of any additional are then listed or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicequoted.
Appears in 2 contracts
Sources: Registration Rights Agreement (Broadfin Capital, LLC), Registration Rights Agreement (Biodelivery Sciences International Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration, qualification, or compliance effected by the Company pursuant to this AgreementSection 3 hereof, the Company shall promptly take all such actions will keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with the intended method or methods of disposition thereofeach registration, qualification, and compliance and as to the completion thereof. With respect to any registration statement filed pursuant thereto to Section 3, the Company shall as expeditiously as possiblewill use its commercially reasonable best efforts to:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in Registrable Securities, a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participatingregistration statement on Form S-1, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a any other form for which the Company then qualifies or which is satisfactory to counsel for the Company and the Participating Shareholders (unless the offering is made on an underwritten basisshall deem appropriate, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 method(s) of distribution thereof, and use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveand remain effective at least for a period ending with the first to occur of (i) the sale of all Registrable Securities covered by the registration statement, (ii) the availability under Rule 144 for the Holder to immediately, freely resell without restriction all Registrable Securities covered by the registration statement, (iii) 90 days after a Piggyback Registration is declared effective by the Commission (in each case, the“Effectiveness Period”); the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) provided that no later than two business days before filing with the Commission a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five shall (5i) days before filing, furnish to each Participating Shareholder and one special counsel (“Holders’ Counsel”) selected by the underwritersCompany for the benefit of the Holders (which Holders’ Counsel shall be the same Holders’ Counsel selected under the Registration Rights Agreement of the Company dated October 17, if any2007 so long as the Investors remain a party to that agreement), copies of all such documents proposed to be filed (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed filed, which documents shall be subject to the review of such Holders’ Counsel, and (including documents incorporated therein ii) notify each Holder of Registrable Securities covered by reference), such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to enable prevent the entry of such Participating Shareholders and the underwriters, stop order or to remove it if any, entered;
(b) if a registration statement is subject to review such documents prior by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the filing thereof, and satisfaction of the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyCommission;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such registration statement effective during the Registration Statement continuously effective for a Effectiveness Period (but in any event at least until expiration of the 90-day period referred to in Section 4(3) of not less than ninety (90) days; 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; Act and Rule 174, or any successor thereto, thereunder, if applicable), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods method(s) of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(d) notify the Participating Shareholders and the managing underwritersfurnish, if anywithout charge, promptly, and (if requested to each Holder of Registrable Securities covered by any such Person) confirm such advice in writing, registration statement (i) when the Prospectus or a reasonable number of copies of such registration statement (including any Prospectus exhibits thereto other than exhibits incorporated by reference), each amendment and 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 effectivethereto as such Holder may request, (ii) such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any request by other prospectus filed under Rule 424 under the SEC for amendments or supplements to Securities Act) as such Holders may request, in conformity with the Registration Statement or requirements of the Prospectus or for additional informationSecurities Act, and (iii) of such other documents as such Holder may reasonably request in order to facilitate the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction or owned by such Holder, but only during the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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 misleadingEffectiveness Period;
(e) make every use its commercially reasonable effort best efforts to obtain register or qualify such Registrable Securities under such other applicable securities or blue sky laws of such jurisdictions as any Holder of Registrable Securities covered by such registration statement reasonably requests as may be necessary for the withdrawal of any order suspending the effectiveness marketability of the Registration Statement at Registrable Securities (such request to be made by the earliest possible momenttime the applicable registration statement is deemed effective by the Commission) and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder; 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 paragraph (e), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies becoming aware of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and event, notify each managing underwriter, without charge, at least one signed copy Holder of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale at any time when a prospectus relating thereto is required to be delivered under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions Securities Act of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) above, which comes to the Company’s attention if as a result of such event 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 misleading and the Company shall promptly prepare and furnish to such Holder a supplement or post-effective Amendment amendment to such prospectus (or prepare and file appropriate reports under the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document Exchange Act) so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, unless suspension of the use of such prospectus otherwise is authorized herein or in the event of a Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the termination of such suspension or Blackout Period;
(mg) comply, and continue to comply during the period that such registration statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission with respect to the disposition of all securities covered by such registration statement, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first full calendar month after the SEC Effective Date, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(h) as promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities being offered or sold pursuant to the Registration Statement of the issuance by the Commission of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(i) permit the Holders of Registrable Securities being included in the Registration Statement and their legal counsel, at such Holders’ sole cost and expense (except as otherwise specifically provided in Section 6) to review and have a reasonable opportunity to comment on the Registration Statement and all amendments and supplements thereto at least two Business Days prior to their filing with the Commission;
(j) make available for inspection by any Holder and any Inspector retained by such Holder, at such Holder’s sole expense, all records as shall be reasonably necessary to enable such Holder to exercise its due diligence responsibility, and cause the Company’s officers, directors, and employees to supply all information which such Holder or any Inspector may reasonably request for purposes of such due diligence; provided, however, that such Holder shall hold in confidence and shall not make any disclosure of any record or other information which the Company determines in good faith to be confidential, and of which determination such Holder is so notified at the time such Holder receives such information, unless (i) the disclosure of such record is necessary to avoid or correct a misstatement or omission in the Registration Statement and a reasonable time prior to such disclosure the Holder shall have informed the Company of the need to so correct such misstatement or omission and the Company shall have failed to correct such misstatement or omission, (ii) the release of such record is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (iii) the information in such record has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such records to any Inspector until and unless such Inspector shall have entered into a confidentiality agreement with the Company with respect thereto, substantially in the form of this Section 4(j), which agreement shall permit such Inspector to disclose records to the Holder who has retained such Inspector. Each Holder agrees that it shall, upon learning that disclosure of such records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the records deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning a Holder provided to the Company pursuant to this Agreement unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) disclosure of such information to the Staff of the Division of Corporation Finance is necessary to respond to comments raised by the Staff in its review of the Registration Statement, (iii) disclosure of such information is necessary to avoid or correct a misstatement or omission in the Registration Statement, (iv) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (v) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Holder and allow such Holder, at such Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(k) use its reasonable best efforts to cause all the Registrable Securities covered by the Registration Statement to be listed or quoted on the Nasdaq National Market and each other exchange principal securities market on which similar securities of the same class or series issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anytraded;
(nl) provide a transfer agent and registrar registrar, which may be a single entity, for the Registrable Securities at all Registrable Securitiestimes;
(om) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or cooperate with the managing underwriters, if any, reasonably request in order Holders of Registrable Securities being offered pursuant to expedite or the Registration Statement to facilitate the disposition timely preparation and delivery of such certificates (not bearing any restrictive legends) representing Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers be offered pursuant to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and enable such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters certificates to be in customary form such denominations or amounts as the Holders may reasonably request and covering matters of registered in such names as the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as Holders may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsrequest; and
(rn) take such all other reasonable steps that are actions necessary or advisable to permit expedite and facilitate disposition by the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution Holders of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver pursuant to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Internet America Inc), Registration Rights Agreement (Internet America Inc)
Registration Procedures. Whenever a Shareholder has requested that In connection with any registration of ----------------------- Registrable Securities be registered pursuant to under this AgreementArticle VI, the Company shall promptly take all such actions will, as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall soon as expeditiously as possible---------- reasonably practicable:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; and remain effective until the Company shall not file any Registration Statement pursuant earlier of such time as all Registrable Securities subject to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders registration statement have been disposed of or the underwritersexpiration of one hundred eighty (180) days; provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;that: -------- -------
(bi) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)filing of any registration statement, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder all Holders covered by such registration statement, their counsel, and the underwriters, if any, and their counsel, copies of all such documents in substantially the form proposed to be filed at least ten (including 10) days prior thereto, which documents incorporated therein will be subject to the reasonable review, within such ten (10) day period, of such Holders, their counsel and the underwriters; and
(ii) before filing any prospectus or any amendments or supplements to any registration statement or prospectus, the Company will furnish to all Holders covered by reference)such registration statement, to enable such Participating Shareholders their counsel, and the underwriters, if any, to review and their counsel, copies of all such documents proposed to be filed a reasonable period of time (in light of the nature of the amendments or changes contained therein, which shall in every event be at least one (1) day and shall never be required to be more than ten (10) days) prior thereto, which documents will be subject to the filing thereofreasonable review, within such period, of such Holders, their counsel and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such Registration Statement during registration statement until the applicable earlier of such time as all of such Registrable Securities have been disposed of or the expiration of one hundred eighty (180) days (except with respect to registrations effected on Form S-3 or any successor form, as to which no such period shall apply);
(c) furnish to each Holder such number of copies of the registration statement and prospectus (including, without limitation, a preliminary prospectus) in accordance conformity with the intended methods requirements of disposition by the Participating Shareholders set forth Securities Act (in such Registration Statement each case including all exhibits) and each amendment or supplement to the Prospectusthereto, together with such other documents as any Holder may reasonably request;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its commercially reasonable best efforts to register or qualify, or cooperate with to qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale covered by such registration statement under the such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as any seller or underwriter each Holder reasonably requests in writing requests, and do any and all such other acts or and things necessary or advisable as may be reasonably required of it to enable such Holder to consummate the disposition in such jurisdictions jurisdiction of the securities covered by such registration statement;
(e) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securities holders, as soon as practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first month after the effective date of such registration statement, which earnings statement will satisfy the provisions of Section 11
(a) of the Securities Act;
(f) provide and cause to be maintained a transfer agent and registrar for Registrable Securities covered by such registration statement from and after a date not later than the Registration Statement; provided that effective date of such registration statement;
(g) if requested by the underwriters for any underwritten offering or Registrable Securities on behalf of a Holder pursuant to a registration requested under Section 6.01, then (i) the Company will not enter into an ------------ underwriting agreement with such underwriters 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 secondary distributions, including, without limitation, provisions with respect to indemnities and contribution as are reasonably satisfactory to such underwriters and the Holders; (ii) the Holders on whose behalf Registrable Securities are to be distributed by such underwriters will be parties to any such underwriting agreement and (iii) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters, will also be made to and for the benefit of such Holders; and no Holder will be required by the Company to qualify generally make any representations or warranties to do business in or agreements with the Company or the underwriters other than reasonable and customary representations, warranties or agreements regarding such Holder, such Holder's Registrable Securities, such Holder's intended method or methods of disposition, and any jurisdiction where it is other representation required by law;
(h) furnish, at the written request of any Holder, on the date that such Registrable Securities are delivered to the underwriters for sale pursuant to such registration, or, if such Registrable Securities are not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; providedbeing sold through underwriters, further, on the date that the registration statement with respect to such Registrable Securities becomes effective, (i) an opinion, in form and substance reasonably satisfactory to such Holders and addressing matters customarily addressed in underwritten public offerings, of the counsel representing the Company for the purposes of such registration (who will not be required an employee of the Company and who will be satisfactory to qualify such Registrable Securities in any jurisdiction in Holders), which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities opinion will be addressed to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, and to consummate the disposition selling Holders; and (ii) a letter (the "Comfort Letter"), in form -------------- and substance reasonably satisfactory to such Holders, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and to the selling Holders making such Registrable Securities;request (and, if such accountants refuse to deliver the Comfort Letter to such Holders, then the Comfort Letter will be addressed to the Company and accompanied by a letter from such accountants addressed to such Holders stating that they may rely on the Comfort Letter addressed to the Company); and
(li) upon during the occurrence period when the registration statement is required to be effective, notify each selling Holder of the happening of any event contemplated by paragraph (d)(vi) aboveas a result of which the prospectus included in the registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and prepare a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) use its reasonable best efforts . It will be a condition precedent to cause all the obligation of the Company to take any action pursuant to this Article VI in respect of the Registrable Securities covered by the Registration Statement ---------- that are to be listed on registered at the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take Holder that such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to Holder furnish to the Company such information and documents regarding the Participating Shareholders Registrable Securities held by such Holder and the distribution intended method of disposition thereof as is legally required in connection with the action taken by the Company. The managing underwriter or underwriters, if any, for any offering of Registrable Securities to be registered pursuant to Section 6.01 or 6.03 will be selected by the ------------ ---- Holders of a majority of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if being so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceregistered.
Appears in 2 contracts
Sources: Securities Exchange and Purchase Agreement (Fresh America Corp), Securities Exchange and Purchase Agreement (Fresh America Corp)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of the registration effected by the Company pursuant to this Agreement, the Company shall promptly take all such actions will keep each Holder advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with registration and as to the intended method or methods of disposition completion thereof. At its expense, and pursuant thereto the Company shall as expeditiously as possiblewill use its best efforts to:
(a) with respect keep such Registration Statement effective until all such Registrable Securities are sold pursuant to the Registration Statement or cease to be Registrable Securities; provided however, that unless prior thereto all such Registrable Securities are (i) sold pursuant to the Registration Statement or Rule 144, or (ii) reissued by the Company without restrictive legend and may immediately be sold under Rule 144 without restrictions, such Registration Statement shall be kept effective for a request period of at least five years; provided further, that if at any time after the Registration Statement is no longer required to be kept effective pursuant to the above provisions of this subparagraph and is no longer effective, but prior to the time that all the Unit Shares, Warrant Shares or Compensation Option Shares have been sold either pursuant to the prior effective Registration Statement or Rule 144, the Company ceases to be subject to the reporting obligations of sections 13 or 15(d) of the Exchange Act, ceases to be current in its filing obligations under sections 13 or 15(d) of the Exchange Act (except for Form 8-K reports), or becomes a Shell Issuer (a “Rule 144 Default Event”), the Company shall promptly file a Registration Statement covering Registrable Securities made such unsold Unit Shares, Warrant Shares and Option Compensation Shares and shall keep such Registration Statement effective until such time as all the Unit Shares, Warrant Shares or Compensation Option Shares have been sold pursuant to Article 3such Registration Statement or the Company again becomes subject to the reporting obligations of sections 13 or 15(d) of the Exchange Act, use is current in its reasonable best efforts reporting obligations under sections 13 or 15(d) of the Exchange Act and, in the case of the Company becoming a Shell Issuer, the Company ceases to be a Shell Issuer, has filed “Form 10 information” with the SEC and one year has elapsed since the Company filed such “Form 10 information”; upon occurrence of a Rule 144 Default Event, the Company shall be subject to the penalty provisions of Section 3 hereof for a filing default until such time as the Company files and brings effective a Registration Statement covering the unsold Units Shares, Warrant Shares and Compensation Option Shares or until such time as the Company is no longer required to keep such a Registration Statement effective pursuant to the above;
(b) prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission such amendments and supplements to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, any prospectus used in connection with such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement statement as may be necessary to keep the such Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement;
(c) notify each seller of Registrable Securities covered by such Registration Statement during at any time when a prospectus relating thereto is required to be delivered under the applicable period in accordance with Securities Act of the intended methods happening of disposition by the Participating Shareholders set forth any event as a result of which a prospectus, if applicable, included in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwritersregistration statement, if any, promptly, and (if requested by any such Person) confirm such advice as then in writingeffect, (i) when no longer meets the Prospectus requirements of Section 10(a)(3) of the Securities Act, 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, (ii) includes an untrue statement of any request by the SEC for amendments a material fact or supplements omits to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease state a material fact required to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction stated therein or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(e) make every reasonable effort to obtain misleading or incomplete in the withdrawal light of the circumstances then existing, and that offers and sales of Registrable Securities in reliance on any order suspending the effectiveness of such prospectus included in the Registration Statement at the earliest possible moment;
must cease. Within five (f5) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies business days of such document notice, the Company shall prepare and furnish to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and such seller a reasonable number of conformed copies of all such documents;
(h) deliver a supplement to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any or an amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States prospectus as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such shares, such prospectus used shall meet the Registrable Securitiesrequirements of Section 10(a)(3) of the Securities Act, the Prospectus will or not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or incomplete in the light of the circumstances then existing;
(md) use its reasonable best efforts to cause all such Registrable Securities covered by the Registration Statement registered pursuant hereunder to be listed or quoted on the Nasdaq National Market and each other securities exchange or quotation service on which similar securities issued by the Company are then listed if requested by Shareholder then, or the managing underwriterssubsequently, if anylisted;
(ne) use its best efforts to obtain all other approvals, consents, exemptions or authorizations from such governmental agencies or authorities as may be necessary to enable the Holders to consummate the disposition of the Registrable Securities;
(f) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order Securities registered pursuant 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and a CUSIP number for all such Registrable Securities, in each case not later than the Prospectus with the Securities Act; (ii) obtain opinions effective date 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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderregistration;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qg) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available Commission;
(h) subject to its security holders, earnings statements satisfying compliance with the provisions of Section 11(a) requirements of the Securities Act, no later than forty-five (45) days after cooperate with the end Holders to facilitate the timely preparation and delivery of certificates not bearing any twelve (12)-month period restrictive legends representing the Registrable Securities sold pursuant to the Registration Statement, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with instructions of the Holders that are provided to the Company;
(i) commencing at in connection with any underwritten offering pursuant to a Registration Statement, the end Company will enter into an underwriting agreement with an underwriter selected and retained by the Agents, and reasonably acceptable to the Company in its discretion, in form reasonably necessary to effect the offer and sale of any fiscal quarter in which such securities, provided such underwriting agreement contains reasonable and customary terms and provisions;
(j) furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters or, if such securities are not being sold through underwriters, on the date that the Registration Statement becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in a firm or best efforts underwriting underwritten public offering, (ii) a letter, dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by the Company’s independent registered public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and if permitted by applicable accounting standards, to the Holders participating in such registration, and (iiiii) beginning with other documents and certificates as are customary for offerings of this type;
(k) use its best efforts to register and qualify the first month Registrable Securities under such other securities or blue sky laws of such jurisdictions as each Holder shall request, and do any and all other acts and things which may be necessary or advisable to enable such Holder to consummate the public sale or other disposition in such jurisdictions of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodssecurities owned by such Holder; and
(rl) take such other reasonable steps that are necessary or advisable actions as shall be reasonably requested by the Agents to permit facilitate the registration and sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceSecurities.
Appears in 2 contracts
Sources: Subscription Agreement (IntelGenx Technologies Corp.), Registration Rights Agreement (IntelGenx Technologies Corp.)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 4.1, 4.2 and 4.3, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review of and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested comment by such Participating Shareholders counsel (it being understood that counsel to the Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker;”
(jxiv) cooperate with the Participating Shareholders any Selling Holder and any underwriter and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such Selling Holder may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cause the Registrable Securities covered cooperate as reasonably requested by the Registration Statement to be registered with Selling Holders and the underwriters in the offering, marketing or approved by such other governmental agencies or authorities within selling of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lxvi) upon have appropriate officers of the occurrence Company, and cause representatives of the Company’s independent registered public accountants, to participate in any event contemplated due diligence discussions reasonably requested by paragraph any Selling Holder or any underwriter;
(d)(vixvii) aboveif requested by any underwriter, prepare agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxix) enter into such agreements (including an underwriting agreement) cooperate and take all such other actions assist in connection therewith as Participating Shareholders or any filings required to be made with the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities FINRA and in such connection, whether or not an underwriting agreement the performance of any due diligence investigation by any underwriter that is entered into required to be undertaken in accordance with the rules and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating FINRA;
(xx) otherwise use reasonable best efforts to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters cooperate as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders Selling Holders and the underwritersunderwriters in the offering, if any, such letters to be in customary form and covering matters marketing or selling of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderRegistrable Securities;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxxi) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof4.5(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l4.5(a)(ix) or and, if so directed by the Advice.Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event the Company shall give such notice, any
Appears in 2 contracts
Sources: Shareholder Agreement (Intrawest Resorts Holdings, Inc.), Shareholder Agreement (Intrawest Resorts Holdings, Inc.)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 3.1, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof3.2 and 3.3, and pursuant thereto the Company shall as expeditiously as reasonably possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up a registration statement to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effectiveand remain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five will furnish upon request to the counsel selected by the Shareholders which are including Registrable Securities in such registration (5“Selling Shareholders”) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereofreview of such counsel, and the Company shall make such review to be conducted with reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anypromptness;
(cii) subject to paragraph (b) above, prepare and file with the SEC such amendments (including post effective amendments), supplements (including prospectus supplements on a quarterly basis to update financial statements) and post-effective amendments “stickers” to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 3.1, the expiration of 90 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the Prospectusexpiration of 90 days after such registration statement becomes effective or (iii) in the case of a shelf registration pursuant to Section 3.3, the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits or documents incorporated by reference therein), such number of copies of 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 Shareholder 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 Shareholder;
(iv) 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company 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 or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the NASDAQ Stock Market or any other nationally recognized securities exchange;
(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 agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent public accountants of any Subsidiary of or business acquired by the Company for which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Shareholder, 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 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 to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Selling Shareholder requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Selling Shareholder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Shareholder and the managing underwriters, if any, promptlyof the following events:
(A) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment has been filedto the registration statement or any Issuer Free Writing Prospectus utilized in connection therewith, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC or any other Governmental Entity for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC or any other Governmental Entity of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(ivD) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose; and
(E) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement;
(x) notify each Selling Shareholder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holdersSelling Shareholders, as soon as reasonably practicable, an earnings statements satisfying statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Common Shares; provided, no later than forty-five however, that the Company shall not be required to serve as such “market maker”;
(45xiv) days after cooperate with the end Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any twelve restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(12)-month period (ixv) commencing have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the end of case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any fiscal quarter in which Registrable Securities (if they are sold eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in a firm or best efforts underwriting the offering, and marketing or selling of the Registrable Securities;
(iixvi) beginning with the first month have appropriate officers of the Company's first fiscal quarter commencing after the effective date , and cause representatives of the Registration StatementCompany’s independent public accountants, which statements shall cover said twelve to participate in any due diligence discussions reasonably requested by any Selling Shareholder or any underwriter;
(12)-month periodsxvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of the Company’s securities;
(xviii) if requested by any Selling Shareholders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Shareholders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Shareholders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Shareholder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Shareholder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from to complete or amend the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, information required by such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceregistration statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fortress Transportation & Infrastructure Investors LLC), Registration Rights Agreement (Fortress Transportation & Infrastructure Investors LLC)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Section 2.1 and, as applicable, 2.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file Commission the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed including such audited financial statements as may be required by the president Securities Act or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company rules and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file Commission, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.1); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany Registration Statement pursuant to Section 2.1, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during registration statement (including, without limitation, any amendment to the applicable period selling stockholder table to reflect any transfers among the Funds of the Securities or Registrable Securities as a result of the provisions contained in accordance with Section 2.1(d) of the intended methods Securities Purchase Agreement or Section 2.5(b)(iii) of disposition by the Participating Shareholders set forth Equity Agreement), until the earlier to occur of six (6) years after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive days or an aggregate of 30 days in such six (6) years period) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the "Registration Statement or supplement to the ProspectusMaintenance Period");
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) furnish to each seller of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for covered by such purpose, and (vi) of the occurrence of any event which makes any registration 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents;
(h) deliver to the Participating Shareholders , as such seller and the underwritersunderwriter, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus public sale or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale other disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(iiv) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale other securities covered by such registration statement under the such other securities laws or blue sky laws of such jurisdictions as any seller thereof shall reasonably request, to keep such registrations or underwriter qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered securities 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 wherein it is would not then but for the requirements of this subdivision (iv) be obligated to be so qualified or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kv) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lvi) upon furnish to each seller of Registrable Securities a signed counterpart, addressed to such seller, and the occurrence underwriters, if any, of:
(A) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller) including that the prospectus and any event contemplated by paragraph (d)(vi) above, prepare prospectus supplement forming a supplement or post-effective Amendment to part of the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will does not contain an untrue statement of a material fact or omit to state any omits a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;, and
(mB) use its reasonable best efforts to cause all Registrable Securities covered 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), dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter of like kind dated the date of the closing under the underwriting agreement), signed by the Registration independent public accountants who have certified the Company's financial statements included in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities (with, in the case of an "agreed upon procedures" letter, such modifications or deletions as may be required under Statement to be listed on Auditing Standards No. 35) and, in the Nasdaq National Market and each other exchange on which similar securities issued by case of the Company are then listed if requested by Shareholder or the managing underwritersaccountants' letter, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions financial matters, and, in connection therewith the case of the legal opinion, such other legal matters, as Participating Shareholders such seller (or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel to the Company, and updates thereof (which counsel and opinions (in form, scope and substance) shall be may reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderrequest;
(pvii) make available for inspection during normal business hours by notify the Participating Shareholders, any underwriter participating Sellers' Representative and its counsel promptly and confirm such advice in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by writing promptly after the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.knowledge thereof:
Appears in 2 contracts
Sources: Registration Rights Agreement (American International Petroleum Corp /Nv/), Registration Rights Agreement (American International Petroleum Corp /Nv/)
Registration Procedures. Whenever a Shareholder has requested that In connection with the registration of any Registrable Securities be registered pursuant to this AgreementSecurities, the Company shall promptly take all effect such actions as may be necessary or desirable registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at Commission within the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) limits prescribed herein a Registration Statement on a form for which the Company then qualifies which is satisfactory with respect to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, such securities and use its reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationseffective and remain effective as provided herein;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments to the each Registration Statement as may be necessary and use its best efforts to keep the such Registration Statement continuously effective for a period of not less than ninety (90) dayseffective; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Securities Exchange Act and the rules and regulations of the Commission promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented; the Company shall not be deemed to have used its best efforts to keep a registration statement effective during the a period if it voluntarily takes any action that results in a participating Holder's not being able to sell such Registrable Securities during such period, unless such action (i) is required under applicable period law or (ii) is determined in accordance with the intended methods of disposition good faith by the Participating Shareholders set forth Board of Directors of the Company to be in such Registration Statement or supplement to the ProspectusCompany's best interest;
(dc) notify the Participating Shareholders Holders of Registrable Securities and the managing underwriters, if any, promptlypromptly (but in any event within two business days), and (if requested by any such Person) confirm such advice notice in writing, (i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request the issuance (or, to the Company's best knowledge, the threat or contemplation) by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, and (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (viii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities for offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(ed) make use every reasonable effort to obtain prevent the withdrawal issuance of any order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(fe) as promptly as practicable after filing furnish to each seller and to each duly authorized broker or underwriter of each seller such number of authorized copies of a Prospectus, including copies of a preliminary Prospectus, in conformity with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing requirements of the Registration Statement)Securities Act, provide copies of and such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all other customary documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons seller, broker or underwriter may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus public sale or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale other disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(if) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyqualify (and to keep each such registration and qualification effective, including through new filings, renewals or cooperate with amendments, during the Participating Shareholders and period such registration statement is required to be kept effective) the underwriters, if any, and their respective counsel in connection with the registration or qualification of, securities covered by such Registrable Securities for offer and sale Registration Statement under the such securities or blue sky laws of such jurisdictions as any each seller or underwriter shall reasonably requests in writing request, and do any and all other reasonable acts and things which may be necessary under such securities or things necessary or advisable blue sky laws to enable such seller to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities covered to be sold 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, or to consent to the jurisdiction of any court or subject itself to suit in any jurisdiction where wherein it is not then so qualified qualified;
(g) before filing the Registration Statement or Prospectus or amendments or supplements thereto, furnish to take any action counsel for each Holder of Registrable Securities included in such Registration Statement copies of all such documents proposed to be filed, all of which would shall be subject it to general service the review and comment of process or taxes such counsel in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required exercise of its reasonable judgment;
(h) use its best efforts to qualify cause such Registrable Securities in covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities exercising jurisdiction over the Company as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;
(i) notify each seller of any jurisdiction in which such Registrable Securities covered by such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the securities regulatory authority requires Securities Act, of the Company's becoming aware that the Participating Shareholders submit Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any shares material fact required to be stated therein or necessary to make the statements therein, in the light of its Registrable Securities the circumstances under which they were made, not misleading, and, at the written request of any such seller, promptly prepare and furnish to such seller and each underwriter a reasonable number of copies of a Prospectus supplemented or amended (whereupon all previous versions of the Prospectus shall not be used by such seller or underwriter and shall be promptly returned to the termsCompany or destroyed) so that, provisions and restrictions as thereafter delivered to the purchasers of any escrowsuch Registrable Securities, lock-up such Prospectus shall not include an untrue statement of a material fact or similar agreement(s) for consent omit to sell Registrable Securities state a material fact required to be stated therein or necessary to make the statements therein, in such jurisdiction unless the Participating Shareholders agrees to do solight of the circumstances under which they were made, not misleading;
(j) comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve consecutive months beginning with the first day of the Company's first 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) use its best efforts to cause all such Registrable Securities covered by such Registration Statement to be listed or quoted on the principal securities exchange (including NASDAQ) on which similar securities issued by the Company are then listed or quoted, if the listing or quoting of such Registrable Securities is then permitted under the rules of such exchange;
(l) provide a transfer agent and registrar for all such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
(m) cooperate with the Participating Shareholders selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and sold, which certificates shall not bearing bear any restrictive legends; and enable such Registrable Securities to be issued in such denominations and registered in such names as the managing underwriters underwriters, if any, or holders may reasonably request at least two (2) Business Days business days prior to any sale of Registrable Securities in a firm commitment underwritten public offering, or at least ten business days prior to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anysuch sale;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such reasonable and customary agreements (including an underwriting agreementagreement containing, among other things, indemnification arrangements in customary form) and take all such other reasonable and customary actions in connection therewith as Participating Shareholders or the managing underwriters, if any, Requisite Holder shall reasonably request in order to expedite or facilitate the registration and disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Securities;
(i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (iio) obtain opinions of counsel to an opinion from the Company, and updates thereof (which 's counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain a "cold comfort" letters and updates thereof letter from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be accountants in customary form and covering such matters of the type as are customarily covered in by such opinions and "cold comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderletters;
(p) upon execution and delivery of such confidentiality agreements as the Company shall reasonably request (which agreements shall not restrict any such person's obligations under applicable securities laws), make available for inspection during normal business hours by the Participating Shareholdersany seller of such Registrable Securities covered by such Registration Statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement, Registration Statement and by any attorney, accountant or other agent retained by the Participating Shareholders any such seller or any such underwriter, all pertinent 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 the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statementRegistration Statement, all as necessary to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;and
(q) otherwise use its permit any Holder of Registrable Securities which Holder, in the sole reasonable best efforts judgment of such Holder, exercised in good faith, might be deemed to comply with all applicable rules and regulations be a controlling person of the SECCompany to participate through counsel in the preparation of such Registration Statement and, if specifically requested by such counsel, in discussions between the Company and make generally available the Commission or its staff with respect to its security holderssuch Registration Statement, earnings statements satisfying to require the provisions insertion therein of Section 11(a) material, furnished in writing, which in the written opinion of such counsel is necessary to include in order to avoid a likelihood of potential liability for any such Holder of Registrable Securities or such counsel. If any such Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Securities ActCompany, no later than forty-five (45) days after then such Holder shall have the end of any twelve (12)-month period right to require (i) commencing at the end insertion therein of any fiscal quarter language, in which Registrable Securities are sold form and substance satisfactory to underwriters in such Holder, to the effect that the holding by such Holder of such securities is not to be construed as a firm or best efforts underwriting offering, and (ii) beginning with recommendation by such Holder of the first month investment quality of the Company's first fiscal quarter commencing after the effective date securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request (ii) in the underwriters to, deliver event that such reference to such Holder by name or otherwise is not in the Company (at judgment of the Company's expense) all copies, other than permanent file copies as advised by counsel, required by the Securities Act or any similar federal statute or any state "blue sky" or securities law then in such Shareholder's possessionforce, the deletion of the Prospectus covering reference to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dynamic Materials Corp), Registration Rights Agreement (Dynamic Materials Corp)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered The following provisions shall apply to registration statements filed pursuant to this AgreementSection 2:
(a) At or before the Effective Time of the Exchange Offer or the Shelf Registration Statement, as the case may be, the Company shall promptly take all such actions qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect to the Shelf Registration Statement, if applicable, the Company shall, as soon as reasonably practicable (or as otherwise specified herein):
(i) prepare and file with the Commission a registration statement with respect to the Shelf Registration Statement on any form which may be necessary or desirable to utilized by the Company and which shall permit the sale disposition of such the Registrable Securities Debentures in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended specified in writing by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale holders of the Registrable Securities in accordance with the intended method or methods of distribution thereofDebentures, and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationseffective as soon as practicable thereafter;
(bii) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus included therein as may be necessary to keep effect and maintain the Registration Statement continuously effective effectiveness of such registration statement for a the period specified in Section 2(b) and as may be required by the applicable rules and regulations of not less than ninety (90) days; cause the Prospectus Commission and the instructions applicable to be supplemented by any required Prospectus supplementthe form of such registration statement, and furnish to the holders of the Registrable Debentures copies of any such supplement or amendment simultaneously with or prior to its being used or filed with the Commission;
(iii) comply, as so supplemented to be filed pursuant to Rule 424 under all matters within the Securities Act; and comply Company's control, with the provisions of the Securities Act with respect to the disposition of all securities of the Registrable Debentures covered by such Registration Statement during the applicable period registration statement in accordance with the intended methods of disposition by the Participating Shareholders holders thereof provided for in such registration statement;
(iv) provide to any of (A) the holders of the Registrable Debentures to be included in such registration statement, (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, thereof, (C) the sales or placement agent, if any, therefor, (D) counsel for such underwriters or agent and (E) not more than one counsel for all the holders of such Registrable Debentures who so request of the Company in writing the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration statement, and throughout the Resale Period, make available at reasonable times at the Company's principal place of business or such other reasonable place for inspection by the persons referred to in Section 3(b)(iv), who shall certify to the Company that they have a current intention to sell their Registrable Debentures pursuant to the Shelf Registration Statement, such financial and other information and books and records of the Company, and cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary, in the judgment of the respective counsel referred to in such Section, to conduct 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 Company in writing 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 requirements of such order, and only after such person shall have given the Company prompt prior written notice of such requirement and the opportunity to contest the same or seek an appropriate protective order), or (C) such information is required to be set forth in such Registration Statement registration statement or the prospectus included therein or in an amendment to such registration statement or an amendment or supplement to such prospectus in order that such registration statement, prospectus, amendment or supplement, as the Prospectuscase may be, does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading;
(dvi) promptly notify the Participating Shareholders selling holders of Registrable Debentures, the sales or placement agent, if any, therefor and the managing underwriter or underwriters, if any, promptlythereof named in the Shelf Registration Statement or a supplement thereto, and (if requested by any such Person) confirm such advice notice in writing, (iA) when such registration statement or the Prospectus prospectus included therein or any Prospectus prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to the Registration Statement such registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iiiB) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement such registration statement or the initiation or written threat of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vC) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities Debentures for sale in any jurisdiction or the initiation or threatening written threat of any proceeding for such purpose, and or (viD) at any time when a prospectus is required to be delivered under the Securities Act, that such registration statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the occurrence Securities Act and the Trust Indenture Act and the rules and regulations 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 misleadingCommission thereunder;
(evii) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement such registration statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documentsthereto at the earliest practicable date;
(hviii) deliver if requested by any managing underwriter or underwriters, any placement or sales agent or any holder of Registrable Debentures, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission relating to the Participating Shareholders terms of the sale of such Registrable Debentures, including information with respect to the principal amount of Registrable Debentures being sold by such holder or agent or to any underwriters, the name and description of such holder, agent or underwriter, the offering price of such Registrable Debentures and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Registrable Debentures to be sold by such holder or agent or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(ix) furnish to each holder of Registrable Debentures, each placement or sales agent, if any, as many therefor, each underwriter, if any, thereof and the respective counsel referred to in Section 3(b)(iv) an executed copy (or, in the case of a holder of Registrable Debentures, a conformed copy) of such registration statement, each such amendment or supplement thereto (in each case including all exhibits thereto) and such number of copies of such registration statement (excluding exhibits thereto) and of the Prospectus prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity in all material respects with the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder; and the Company hereby consents to the use of such prospectus (including any such preliminary or summary prospectus) and any amendment or supplement thereto as by each such Persons may reasonably request; holder and by any such agent and underwriter, in each case in the form most recently provided to such person by the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities Debentures covered by the Prospectus prospectus (including any such preliminary or summary prospectus) or any supplement or amendment or supplement thereto;; and
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kx) use its reasonable best efforts to cause (A) register or qualify the Registrable Securities covered by Debentures to be included in such registration statement under such securities laws or blue sky laws of such United States jurisdictions as any holder of such Registrable Debentures and each placement or sales agent, if any, therefor and underwriter, if any, thereof shall reasonably request, and (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions during the period the Shelf Registration Statement is required to be registered with or approved by such other governmental agencies or authorities within the United States remain effective under Section 2(b) and for so long as may be necessary to enable any such holder, agent or underwriter to complete its distribution of Debentures pursuant to such registration statement but in any event not later than the seller date through which the Company is required to keep the Shelf Registration Statement effective pursuant to Section 2(b); provided, however, that the Company shall not be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(b)(x), (2) consent to general service of process in any such jurisdiction or sellers thereof (3) make any changes to its certificate of incorporation or by-laws or any agreement between it and its stockholders. In case any of the underwritersforegoing obligations is dependent upon information provided or to be provided by a party other than the Company, if any, such obligation shall be subject to consummate the disposition provision of such Registrable Securities;
(l) upon information by such party; provided that the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) Company shall use its reasonable best efforts to cause all Registrable Securities covered by obtain the Registration Statement to be listed on necessary information from any party responsible for providing such information.
(c) In the Nasdaq National Market and each other exchange on which similar securities issued by event that the Company are then listed if requested by Shareholder would be required, pursuant to Section 3(b)(vi)(D), to notify the selling holders of Registrable Debentures, the placement or the managing underwriterssales agent, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders , therefor or the managing underwriters, if any, reasonably request thereof named in order the Shelf Registration Statement or a supplement thereto of the existence of the circumstances described therein, the Company shall promptly prepare and furnish to expedite each such holder, to each placement 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 (i) make such representations and warranties to the Participating Shareholders and the underwriterssales agent, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriterseach such underwriter, if any, covering the matters customary a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of Registrable Debentures, such prospectus shall conform in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed all material respects to the Participating Shareholders applicable requirements of the Securities Act and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders Trust Indenture Act and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writingCommission thereunder. Each Shareholder holder of Registrable Debentures agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Company, pursuant to Section 5(d)(vi) hereof3(b)(vi)(D), such Shareholder will holder shall forthwith discontinue (and cause any placement or sales agent or underwriters acting on their behalf to discontinue) the disposition of Registrable Securities Debentures pursuant to the registration statement applicable to such Registrable Debentures until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing holder (the "ADVICE"i) by the Company that the use of the Prospectus may be resumed, and has shall have received copies of any additional such amended or supplemental filings which are incorporated by reference in the Prospectus, supplemented prospectus and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, such holder shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies copies, then in such Shareholderholder's possession, possession of the Prospectus prospectus covering such Registrable Securities current Debentures at the time of receipt of such notice. If notice or (ii) shall have received notice from the Company shall give such notice, that the time periods mentioned in Section 5(cdisposition of Registrable Debentures pursuant to the Shelf Registration Statement may continue.
(d) hereof shall be extended by the number The Company may require each holder of days during the period from and including the date of the giving of such notice Registrable Debentures as to which any registration pursuant to Section 5(d)(vi2(b) is being effected to furnish to the Company such information regarding such holder and such holder's intended method of distribution of such Registrable Debentures as the Company may from time to time reasonably request in writing, but only to the extent that such information is required in order to comply with the Securities Act. Each such holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by such holder to the Company or of the occurrence of any event in either case as a result of which any prospectus relating to such registration contains or would contain an untrue statement of a material fact regarding such holder or such holder's intended method of disposition of such Registrable Debentures or omits to state any material fact regarding such holder or such holder's intended method of disposition of such Registrable Debentures required to be stated therein or necessary to make the statements therein not misleading, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such holder or the disposition of such Registrable Debentures, 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.
(e) Until the expiration of two years after the Closing Date, the Company will not, and will not permit any of its "affiliates" (as defined in Rule 144) to resell any of the Debentures that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act.
(f) In connection with the Company's obligations with respect to the registration of Exchange Debentures as contemplated by Section 2(a) (the "Exchange Registration"), if applicable, the Company shall, as soon as reasonably practicable (or as otherwise specified):
(i) prepare and including file with the date when Commission such Participating Shareholder shall have received amendments and supplements to the Exchange Offer Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness thereof for the periods and purposes contemplated in 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 the Exchange Offer Registration Statement, and promptly provide each broker-dealer holding Exchange Debentures with such number of copies of the supplemented prospectus included therein (as then amended or amended supplemented), in conformity in all material respects with the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request for use in connection with resales of Exchange Debentures;
(ii) promptly notify each broker-dealer that has requested or received copies of the prospectus contemplated included in the Exchange Offer Registration Statement, and confirm such advice in writing, (A) when any prospectus amendment or supplement or post-effective amendment to the Exchange Offer Registration Statement has been filed, and, with respect to any post-effective amendment to the Exchange Offer Registration Statement, when the same has become effective, (B) of the issuance by Section 5(l) the Commission of any stop order suspending the effectiveness of the Exchange Offer Registration Statement or the Advice.initiation or threatening of any proceedings for that purpose, (C) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Exchange Debentures for sale in any United States jurisdiction or the initiation or threatening in writing of any proceeding for such purpose, or (D) at any time when a prospectus is required to be delivered under the Securities Act, that the Exchange Offer Registration Statement,
Appears in 2 contracts
Sources: Registration Rights Agreement (Cinergy Corp), Registration Rights Agreement (Cinergy Corp)
Registration Procedures. Whenever a Shareholder has requested that any If and whenever the Company is required ----------------------- by the provisions of Sections 1.2 and 1.3 or 1.4 to effect the registration of shares of Registrable Securities be registered pursuant to this Agreementunder the Securities Act, the Company shall promptly take all such actions as may be necessary or desirable will use its best efforts to permit effect the registration and sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofspecified by the holders participating therein. Without limiting the foregoing, and pursuant thereto the Company shall in each such case will, as expeditiously as possible,:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty Commission (60in the case of a demand registration pursuant to Section 1.2 or Section 1.4) days after receipt of the relevant Demand Request requisite registration statement to effect such registration (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60Securities Act or the rules and regulations promulgated thereunder) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 provided, however, that as -------- ------- far in advance as practical before filing such registration statement or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and counsel for the underwriters, if any, requesting holders copies of reasonably complete drafts of all such documents in substantially the form proposed to be filed (including documents incorporated therein by referenceexhibits), and any such holder shall have the opportunity to enable object to any information pertaining solely to such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, holder that is contained therein and the Company shall will make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be corrections reasonably requested by such Participating Shareholders and the managing underwriter holder with respect to such information prior to filing any such registration statement or underwriters, if anyamendment;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the Registration Statement such registration statement and any prospectus used in connection therewith as may be necessary to keep maintain the Registration Statement continuously effective for a period effectiveness of not less than ninety (90) days; cause the Prospectus such registration statement and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities included in such registration statement, in accordance with the intended methods of disposition thereof, until the earlier of (i) such time as all of such securities covered by such Registration Statement during the applicable period have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement and (ii) one hundred eighty (180) days after such registration statement becomes effective;
(dc) promptly notify the Participating Shareholders each requesting holder and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, :
(i) when the Prospectus such registration statement or any Prospectus prospectus used in connection therewith, or any amendment or supplement or post-effective amendment thereto, has been filed, filed and, with respect to the Registration Statement such registration statement or any post-post- effective amendmentamendment thereto, when the same has become effective, ;
(ii) of any written request by the SEC Commission for amendments or supplements to the Registration Statement such registration statement or the Prospectus or for additional information, prospectus;
(iii) of the notification to the Company by the Commission of its initiation of any proceeding with respect to the issuance by the SEC Commission of, or of the issuance by the Commission of, any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, such registration statement; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction under the applicable securities or the initiation or threatening blue sky laws of any proceeding for jurisdiction;
(d) furnish to each seller of Registrable Securities included in such purposeregistration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such seller's Registrable Securities, and (vi) such other documents, as such seller may reasonably request to facilitate the disposition of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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 misleadingits Registrable Securities;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale included in such registration statement under the such other securities or blue sky laws of such jurisdictions as each holder of Registrable Securities thereof shall reasonably request within twenty (20) days following the original filing of such registration statement and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any seller or underwriter other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such holder to consummate the disposition in such jurisdictions 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 (i) to qualify generally to do business as a foreign corporation in any jurisdiction where wherein it is would not then but for the requirements of this paragraph (e) be obligated to be so qualified or qualified, (ii) to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required or (iii) to qualify such Registrable Securities subject itself to taxation in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do soby reason of such registration or qualification;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kf) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement included in such 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 each holder thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lg) upon If and to the occurrence extent any of the following are obtained by or furnished to the Company or the underwriters, furnish to any holder who so requests a signed counterpart, addressed to such holder (and the underwriters, if any), of
(i) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), and
(ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statements included in such registration statement; provided, however, that the obligation to furnish a "cold comfort" letter -------- ------- shall only be imposed to the extent permitted under any then-prevailing rules of accounting procedure;
(h) notify each holder whose Registrable Securities are included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event contemplated by paragraph (d)(vi) aboveas a result of which any prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at the request of any such holder promptly prepare and furnish to such holder a reasonable number of copies of a supplement to or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securitiessuch securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(mi) otherwise use its reasonable best efforts to cause all Registrable Securities covered by comply with applicable rules and regulations of the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anyCommission;
(nj) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and included in such connection, whether or registration statement not an underwriting agreement is entered into and whether or not later than the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy effective date of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;and
(qk) otherwise use its reasonable best efforts to comply with cause all applicable rules and regulations Registrable Securities included in such registration statement to be listed, upon official notice of issuance, on any securities exchange or quotation system on which any of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) securities of the Securities Act, no later than forty-five (45) days after same class as the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; andthen listed.
(rl) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each holder whose Registrable securities are being registered to, and each such holder, as a condition to including Registrable Securities in such registration, shall, furnish to the Company and the underwriters with such information and documents affidavits regarding the Participating Shareholders such holder and the distribution of the Registrable Securities such securities as the Company and the underwriters may from time to time reasonably request in writingwriting in connection with such registration. Each Shareholder agrees thatAt any time during the effectiveness of any registration statement covering Registrable Securities offered by a holder, upon if such holder becomes aware of any change materially affecting the accuracy of the information contained in such registration statement or the prospectus (as then amended or supplemented) relating to such holder, it will immediately notify the Company of such change.
(m) Upon receipt of any notice from the Company of the happening of any event of the kind described in paragraph (h) of this Section 5(d)(vi) hereof1.5, such Shareholder each holder will forthwith discontinue such holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such Shareholder's receipt of holder receives the copies of the supplemented or amended Prospectus prospectus contemplated by paragraph (h) of this Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, 1.5 and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies copies, then in such Shareholderholder's possession, possession of the Prospectus covering prospectus relating to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Purchase Agreement for Series a Convertible Preferred Stock (Fieldworks Inc), Stock Purchase Agreement (Fieldworks Inc)
Registration Procedures. Whenever a Shareholder has requested If and whenever this Agreement contemplates ----------------------- that the Company will effect the registration under the Act of any Registrable Securities be registered pursuant to this Agreementshares held by Holder, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleshall:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to 3.1 prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare Securities and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities Exchange Commission (the "PARTICIPATING SHAREHOLDERSEC") a certificate signed by registration statement on the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company appropriate form with respect to such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, shares and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; and remain effective as provided herein, provided that before filing any amendments or supplements to a registration statement or prospectus, including documents incorporated by reference after the initial filing of the registration statement, the Company shall will furnish to Holder and the underwriters, if any, copies of all such documents proposed to be filed at least five business days prior thereto, which documents will be subject to the reasonable review of Holder and underwriters, and the Company will not file any Registration Statement pursuant an amendment to Article 3 a registration statement or any amendment thereto or any Prospectus prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders Holder or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsobject;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, 3.2 prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith and to take such other action as may be necessary to keep such registration statement effective until the Registration Statement continuously earlier of (i) the completion of the distribution of shares so registered, or (ii) expiration of the 120 day period following immediately the effective for a period date of not less than ninety such registration statement (90) days; cause at which time unsold shares may be deregistered), and otherwise comply with applicable provisions of the Prospectus Act and the rules and regulations promulgated under the Act;
3.3 furnish to Holder and its counsel, and to each underwriter of the shares to be supplemented sold by Holder, without charge, such number of copies of one or more preliminary prospectuses, any supplements thereto and a final prospectus and any supplements thereto in conformity with the requirements of the Act, and such other documents as Holder or such underwriter may reasonably request, in order to facilitate the public sale or other disposition of such shares;
3.4 if, during any period in which, in the opinion of the Company's counsel, a prospectus relating to the shares is required to be delivered under the Act in connection with any offer or sale contemplated by any required Prospectus registration statement, any event known to the Company occurs as a result of which the prospectus would include an untrue statement of material fact or omit to state any material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the related prospectus to comply with the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the respective rules and regulations thereunder, to notify Holder promptly and to prepare and file with the SEC an amendment or supplement, whether by filing such documents pursuant to the Act or the Exchange Act as may be necessary to correct such untrue statement or omission or to make any registration statement or the related prospectus comply with such requirements and as so supplemented to furnish to Holder and its counsel such amendment or supplement to such registration statement or prospectus;
3.5 timely to file with the SEC (i) any amendment or supplement to any registration statement or to any related prospectus that is required by the Act or the Exchange Act or requested by the SEC, and (ii) all documents (and any amendments to previously filed documents) required to be filed by the Company pursuant to Rule 424 under Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act; and comply ;
3.6 within five days of filing with the provisions SEC of the Securities Act with respect (i) any amendment or supplement 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 Participating Shareholders set forth in such Registration Statement any registration statement, (ii) any amendment or supplement to the Prospectusrelated prospectus, or (iii) any document incorporated by reference in any of the foregoing or any amendment of or supplement to any such incorporated document, to furnish a copy thereof to Holder;
(d) notify the Participating Shareholders 3.7 to advise Holder and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, its counsel promptly (i) when the Prospectus or any Prospectus supplement or post-post- effective amendment has been filed, and, with respect to any registration statement becomes effective and when any further amendment of or supplement to the Registration Statement or any post-effective amendment, when prospectus shall be filed with the same has become effectiveSEC, (ii) of any request or proposed request by the SEC for amendments an amendment or supplements supplement to any registration statement, to the Registration Statement or related prospectus, to any document incorporated by reference in any of the Prospectus foregoing or for any additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of any registration statement or any order directed to the Registration Statement related prospectus or any document incorporated therein by reference or the initiation or threat of any proceedings for that purposestop order proceeding or of any challenge to the accuracy or adequacy of any document incorporated by reference in such prospectus, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities shares for sale in any jurisdiction or the initiation or threatening threat of any proceeding for such purpose, and (viv) of the occurrence happening of any event which makes untrue any statement of a material fact made in any registration statement or the Registration Statement, the Prospectus related prospectus as amended or any document incorporated therein by reference untrue supplemented or which requires the making of any changes a change in the Registration Statement, the Prospectus such registration statement or any document incorporated therein by reference such prospectus as amended or supplemented in order to make the statements any material statement therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement 3.8 on or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to before the date on which the Registration Statement a registration statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the shares covered by such registration or qualification of, such Registrable Securities for offer and sale statement under the securities or blue sky laws of such jurisdictions as any seller or underwriter Holder shall reasonably requests in writing request, considering the nature and size of the offering, and do any and all such other acts or and things as may be reasonably necessary or advisable to enable Holder to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any each such jurisdiction where it is not then so subjectof such shares; provided, furtherhowever, that the Company will shall not be required obligated to qualify such Registrable Securities in as a foreign corporation to do business under the laws of any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit it has not been qualified, or to file any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for general consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do soservice of process;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) 3.9 use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement shares sold pursuant to any registration statement to be listed on the Nasdaq National Market and each other exchange on which similar national securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwritersexchange, if any, on which such shares are then listed;
3.10 enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably request required 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderSecurities;
(p) 3.11 make reasonably available for inspection during normal business hours by the Participating ShareholdersHolder, any underwriter participating in any disposition pursuant to such the registration statement, and any attorney, accountant or other agent retained by Holder or underwriter (collectively, the Participating Shareholders or any such underwriter"Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the CompanyCompany (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent Inspector in connection with such registration statement; provided that any records. Records and other information which the Company determines, information or documents that in good faith, to be confidential and which it notifies the Inspectors are designated confidential shall not be disclosed by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period Inspectors unless (i) commencing at the end disclosure of any fiscal quarter such Records, in which Registrable Securities are sold the opinion of counsel reasonably acceptable to underwriters the Company, is necessary to avoid or correct a misstatement or omission in a firm the registration statement, or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale release of such Registrable Securitiesrecords is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. The Company may require the Participating Shareholders to furnish Holder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by allow the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
3.12 use its best efforts to obtain a "cold comfort" letter from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by "cold comfort" letters as Holder, or the managing underwriter, reasonably requests;
3.13 use its best efforts to obtain an opinion or opinions from counsel for the Company in customary form;
3.14 make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment; and
3.15 cooperate with Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) all copiesrepresenting securities to be sold under the registration statement, other than permanent file copies then and enable such securities to be in such Shareholder's possessiondenominations and registered in such names as the managing underwriter or underwriters, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such noticeif any, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceHolder may request.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ion Laser Technology Inc), Registration Rights Agreement (Ion Laser Technology Inc)
Registration Procedures. Whenever If and whenever the Company is required by the provisions of this Agreement to use commercially reasonable best efforts to effect or cause a Shareholder has requested that any Registrable Securities be registered pursuant to registration as provided in this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use Use its commercially reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at SEC, a registration statement within the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofperiods specified herein, and use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant effective as promptly as practicable and to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of remain effective under the Securities Act until (i) the Lapse Date with respect to registrations pursuant to Section 2(b) and (ii) until the earlier of such time as all securities covered thereby are no longer Registrable Securities or one hundred and eighty (180) days after such registration statement becomes effective with respect to registrations pursuant to Section 2(a), in every case as any other applicable laws or regulations;such period may be extended pursuant to Section 5(h) hereto.
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto Prepare and file (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwritersand, if anyapplicable, copies of all such documents in substantially the form proposed cause to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by referencebecome effective) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC SEC, as promptly as practicable, such amendments and amendments, post-effective amendments and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a such period of not less than ninety (90time required by Section 5(a) days; cause the Prospectus to above, as such period may be supplemented by any required Prospectus supplement, and as so supplemented to be filed extended pursuant to Rule 424 under the Securities Act; and comply Section 5(h) hereto.
(c) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in during which any such Registration Statement or supplement registration statement is required to the Prospectus;be effective.
(d) notify Furnish to any Holder and any underwriter of Registrable Securities, (i) such number of copies (including manually executed and conformed copies) of such registration statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (ii) such number of copies of the Participating Shareholders prospectus used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and the managing underwritersfinal prospectus), and (iii) such number of copies of other documents, in each case as such Holder or such underwriter may reasonably request.
(e) Use its commercially reasonable best efforts to register or qualify all Registrable Securities covered by such registration statement under the securities or "blue sky" laws of states of the United States as any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject.
(f) Use, as soon as practicable after the effectiveness of the registration statement, commercially reasonable best efforts to cause the Registrable Securities covered by such registration statement to be registered with, or approved by, such other United States public, governmental or regulatory authorities, if any, promptlyas may be required in connection with the disposition of such Registrable Securities.
(g) Use its commercially reasonable best efforts to list the Common Stock covered by such registration statement on any securities exchange (or if applicable, and The NASDAQ Stock Market) on which any securities of the Company are then listed, if the listing of such Registrable Securities in then permitted under the applicable rules of such exchange (or if applicable, The NASDAQ Stock Market).
(h) Notify each Holder as promptly as practicable and, if requested by any such Person) Holder, confirm such advice notification in writing, (i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the Registration Statement a registration statement or any post-effective amendmentamendment thereto, when the same has become effectivebeen declared effective by the SEC, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending or the effectiveness coming to the Company's attention of the Registration Statement or the initiation of any proceedings for that such or a similar purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (viii) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (viiv) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus to a registration statement or any document incorporated therein by reference in order to make the statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of related prospectus so that such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder 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 to make the statements therein, in light of the circumstances under which they are made, not misleading;
), and (mv) use its reasonable best efforts of the Company's determination that the filing of a post-effective amendment to cause all Registrable Securities covered by the Registration Statement shall be necessary or appropriate. Upon the receipt of any notice from the Company of the occurrence of any event of the kind described in clause (iv) or (v) of this Section 5(h), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company's expense, all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the registration statements are required to be listed on the Nasdaq National Market and each other exchange on which similar securities issued effective as set forth under Section 5(a) shall be extended by the Company are then listed if requested by Shareholder or number of days from and including the managing underwritersdate such notice is provided, if any;to and including the date when Holders shall have received copies of the corrected prospectus.
(ni) provide a transfer agent and registrar for all Registrable Securities;
(o) enter Enter into such agreements (including an underwriting agreement) and take all such other appropriate actions in connection therewith as Participating Shareholders or the managing underwriters, if any, are customary and reasonably request in order necessary to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connectionthat regard, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties deliver to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver Holders such documents and certificates as may be reasonably requested by any Holder of the Participating Shareholders and Registrable Securities being sold or, as applicable, the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officerscompliance with this Agreement including, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriterwithout limitation, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its using commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available cause its independent accountants to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold deliver to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date Board of the Registration Statement, which statements shall cover said twelve Trustees (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish and to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition Holders of Registrable Securities until being sold in any registration) an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement or, if such Shareholderletter cannot be obtained through the exercise of commercially reasonable best efforts, cause its independent accountants to deliver to the Company's receipt Board of Trustees (and to the copies Holders of Registrable Securities being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the supplemented Company's financial statements included or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (registration statement at the Company's expense) all copies, other than permanent file copies highest level permitted to be given by such accountants under the then in such Shareholder's possession, applicable standards of the Prospectus covering Association of Independent Certified Accountants with respect to such Registrable Securities current at the time of receipt of such noticeregistration statement. If In addition, the Company shall give such notice, furnish to the time periods mentioned Holders of Registrable Securities being included in Section 5(c) hereof shall be extended by the number any registration hereunder an opinion of days during the period from counsel substantially identical in substance and including the date of the giving of such notice pursuant scope to Section 5(d)(vi) that customarily delivered to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceunderwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (Brandywine Realty Trust), Registration Rights Agreement (Brandywine Realty Trust)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to use its best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementas provided in Sections 2 and 3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and as soon thereafter as possible file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up requisite registration statement to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effective; provided that before filing such registration statement or any amendments or supplements thereto, the Company (i) shall furnish to the Selling Stockholders and their counsel copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and (ii) may not file any Registration Statement pursuant to Article 3 such registration statement or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which any such Selling Stockholder shall have reasonably objected on the Participating Shareholders grounds that, in the opinion of counsel to such Selling Stockholder, such registration statement or the underwriters, if any, shall reasonably object amendment or supplement does not comply in light of all material respects with the requirements of the Securities Act or any other applicable laws or regulationsAct;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement continuously effective for a period of either (i) not less than ninety 120 days (90subject to extension pursuant to the last paragraph of this Section 4 or, if applicable, such longer period contemplated by the last sentence of Section 2(a)) days; cause or, if such registration statement relates to an underwritten offering, such longer period as in the Prospectus opinion of counsel for the underwriters a prospectus is required by law to be supplemented delivered in connection with sales of securities by an underwriter or dealer; or (ii) such shorter period as is required for the disposition of all of the securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (but in any event not before the expiration of any longer period of effectiveness required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement or registration statement;
(c) furnish to each seller of securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents in order to facilitate the Prospectusdisposition of such securities owned by such seller in accordance with such seller's intended method of disposition, as such seller may reasonably request, but only during such time as the Company shall be required under the provisions hereof to cause such registration statement to remain current;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyqualify securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions in the United States as each seller thereof shall reasonably request, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the to keep such registration or qualification ofin effect for so long as such registration statement remains in effect, and to take any other action which may be reasonably necessary to enable such Registrable Securities seller to consummate the disposition in such jurisdictions in the United States of the securities owned by such seller, except that for offer and sale the performance of its obligations under this Section 4(d), the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise be required to qualify but for the requirements of this Section 4(d), (ii) consent to general service of process in any such jurisdiction, (iii) subject itself to taxation in any such jurisdiction or (iv) conform its capitalization or the composition of its assets at the time to the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(ke) use its reasonable best efforts to cause the Registrable Securities all securities covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States Governmental Authorities as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof or to consummate the disposition thereof;
(f) furnish to each Selling Stockholder a signed counterpart, addressed to such Selling Stockholder (and the underwriters, if any), to consummate of:
(i) an opinion of counsel for the disposition Company, dated the effective date of such Registrable Securitiesregistration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), in form and substance reasonably satisfactory to such Selling Stockholder; and
(ii) a "comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), in form and substance reasonably satisfactory to such Selling Stockholder, signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities;
(lg) furnish to each such Selling Stockholder a copy of any amendment or supplement to such registration statement or prospectus (other than any amendment or supplement in the form of a filing which the Company is required to make pursuant to the Exchange Act);
(h) notify each Selling Stockholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the occurrence discovery of the happening of any event contemplated by paragraph (d)(vi) aboveas a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and at the request of any such Selling Stockholder promptly prepare and furnish to such Selling Stockholder a reasonable number of copies of a supplement to or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securitiessuch securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) 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, an earnings statements satisfying statement covering a period of at least twelve months beginning after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five ;
(45j) days after cooperate in the end conduct of any twelve such due diligence relating to the Company as the Selling Stockholders and the managing or lead underwriter or underwriters (12)-month period (iincluding their counsel and other authorized representatives) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting may reasonably request and is customary for such offering, and (ii) beginning with the first month of including by making available for inspection the Company's first fiscal quarter commencing after financial and other records and pertinent corporate and other documents as shall be reasonably necessary or appropriate to enable such persons to conduct their due diligence and by causing the Company's officers and personnel to supply information and respond to all inquiries reasonably requested by such persons in connection with their due diligence;
(k) use its best efforts to provide customary assistance to the underwriters in their selling efforts and presentations to prospective investors, including by making available the Company's officers and personnel for presentations to and meetings with prospective investors; and
(l) use its best efforts to list, or have approved for trading, all shares of Common Stock covered by such registration statement on any national securities exchange or automated interdealer quotations system on which the Common Stock is then listed or approved for trading not later than the effective date of the Registration Statement, which statements such registration statement. Each Selling Stockholder shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company in writing for inclusion in the registration statement such information and documents regarding the Participating Shareholders such Selling Stockholder and the distribution of the such Registrable Securities being sold as the Company may from time to time reasonably request in writingrequest. Each Shareholder Selling Stockholder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof4(h), such Shareholder will Selling Stockholder shall forthwith discontinue such Selling Stockholder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such ShareholderSelling Stockholder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE"4(h) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, such Selling Stockholder shall use its reasonable efforts to deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such ShareholderSelling Stockholder's possession, of the Prospectus covering prospectus relating to such Registrable Securities current at the time of receipt of such notice. If the Company shall give any such notice, the applicable time periods period mentioned in Section 5(c4(b) hereof during which a registration statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(vi) 4(h), to and including the date when such Participating Shareholder each Selling Stockholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice4(h).
Appears in 2 contracts
Sources: Registration Rights Agreement (Atlas America Inc), Registration Rights Agreement (Atlas America Inc)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 6.1, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, 6.2 and pursuant thereto 6.3 the Company shall as expeditiously promptly as possible:practicable (in each case, to the extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare SEC and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review and comment of such counsel (it being understood that counsel to the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (x) in the case of a Demand Registration Statement pursuant to Section 6.1, the expiration of 60 days after such registration statement becomes effective, (y) in the case of a Piggyback Registration pursuant to Section 6.2, the expiration of 60 days after such registration statement becomes effective or supplement (z) in the case of a Shelf Registration pursuant to Section 6.3, the ProspectusShelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) 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 Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that the Company 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 or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(A) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC or any of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(ivD) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(oE) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding Proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holdersSelling Holders, as promptly as practicable, an earnings statements satisfying statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, no later than forty-five however, that the Company shall not be required to serve as such “market maker”;
(45xiv) days after cooperate with any Selling Holder and any underwriters and the end managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any twelve restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, if necessary or appropriate;
(12)-month period (ixv) commencing have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the end of case may be, take other actions to obtain ratings for any fiscal quarter in which Registrable Securities (if they are sold eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in a firm or best efforts underwriting the offering, and marketing or selling of the Registrable Securities;
(iixvi) beginning with the first month have appropriate officers of the Company's first fiscal quarter commencing after the effective date , and cause representatives of the Registration StatementCompany’s independent registered public accountants, which statements shall cover said twelve to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(12)-month periodsxvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement. Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(b) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof6.6(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l6.6(a)(ix) or and, if so directed by the Advice.Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event the Company shall give such notice,
Appears in 2 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreement (Moelis & Co)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration effected by the Company pursuant to this AgreementArticle I or II, the Company shall promptly take all will keep each Holder participating in such actions registration reasonably informed as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofstatus thereof and, and pursuant thereto at its expense, the Company shall will, as expeditiously as possiblepossible to the extent applicable:
(a) prepare and file, as promptly as reasonably practicable, with the Commission a registration statement with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale of the Registrable Securities securities in accordance with the intended method or methods applicable provisions of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsthis Agreement;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file file, as promptly as reasonably practicable, with the SEC Commission such amendments and amendments, including post-effective amendments amendments, and supplements to such registration statement and the Registration Statement prospectus used in connection with such registration statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with registration statement (including to permit the intended methods method of disposition by distribution thereof) and as may be necessary to keep the Participating Shareholders registration statement continuously effective for the period set forth in such Registration Statement or supplement this Agreement;
(c) furnish to the ProspectusHolders participating in such registration and to their legal counsel copies of the registration statement proposed to be filed, and provide such Holders and their legal counsel the reasonable opportunity to review and comment on such registration statement;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements Holders participating in such registration and to the Registration Statement or the Prospectus or for additional information, (iii) underwriters of the issuance by the SEC securities being registered such reasonable number of any stop order suspending the effectiveness copies of the Registration Statement or registration statement, preliminary prospectus and final prospectus as the initiation such underwriters may reasonably request in order to facilitate the public offering of any proceedings for that purpose, such securities;
(ive) if use commercially reasonable efforts to notify each Holder of Registrable Securities covered by such registration statement at any time any when a prospectus relating thereto is required to be delivered under the Securities Act of the representations or warranties Company’s knowledge of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence happening of any event as a result of which makes any the prospectus included in such registration statement, as then in effect, includes an untrue statement made in the Registration Statement, the Prospectus of a material fact or any document incorporated omits to state a material fact required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(e) make every reasonable effort misleading or incomplete in the light of the circumstances then existing, and, subject to obtain Section 3.1(n), at the withdrawal request of any order suspending such Holder, prepare promptly and furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the effectiveness purchaser 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 or incomplete in the light of the Registration Statement at the earliest possible momentcircumstances then existing;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a use commercially reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with and qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the securities covered by such registration or qualification of, statement under such Registrable Securities for offer and sale under the other securities or blue sky laws of such jurisdictions as any seller or underwriter shall be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered requested by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subjectHolders; provided, furtherhowever, that the Company will shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions in which it is not already qualified;
(g) in the event that the Registrable Securities are being offered in an underwritten public offering, enter into and perform its obligations under an underwriting agreement on customary terms and in accordance with the applicable provisions of this Agreement;
(h) use commercially reasonable efforts to furnish, (i) on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, an opinion and negative assurance letter, dated as of such date, of the legal counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) on the date that the offering of such Registrable Securities is priced and on the date that such securities are being sold through underwriters, a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters;
(i) in connection with a customary due diligence review, make available during business hours for inspection by the Holders, any underwriter participating in any jurisdiction such disposition of Registrable Securities, if any, and any counsel or accountants retained by the Holders or underwriter (collectively, the “Offering Persons”), all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all relevant information and participate in which customary due diligence sessions in each case reasonably requested by any such representative, underwriter, counsel or accountant in connection with such registration statement, provided, however, each such underwriter shall agree in writing to hold in strict confidence and not to make any disclosure or use of any information requested above (the securities regulatory authority requires “Requested Information”), unless (1) the disclosure of the Requested Information is necessary to avoid or correct a misstatement or omission in such registration or is otherwise required under the Securities Act, (2) the release of the Requested Information is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, (3) the Requested Information is or has been made generally available to the public other than by disclosure in violation of this Agreement, (4) the Requested Information was within such underwriter’s possession on a non-confidential basis prior to it being furnished to such underwriter by or on behalf of the Company or any of its representatives, provided that the Participating Shareholders submit source of such information was not bound by a confidentiality agreement or other contractual, legal or fiduciary obligation of confidentiality with respect to such information or (5) the Requested Information becomes available to such underwriter on a non-confidential basis from a source other than the Company or any shares of its Registrable Securities representatives, provided that such source is not bound by a confidentiality agreement or other contractual, legal or fiduciary obligation of confidentiality with respect to such information. Such underwriter agrees that it shall, upon learning that disclosure of the Requested Information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the termsCompany and allow the Company, provisions and restrictions of any escrowat the Company’s expense, lock-up to undertake appropriate action to prevent disclosure of, or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless obtain a protective order for, the Participating Shareholders agrees to do soRequested Information deemed confidential;
(j) cooperate in the event that any broker-dealer underwrites any Registrable Securities or participates as a member of an underwriting syndicate or selling group or “participates in an offering” (within the meaning of the FINRA Rules) thereof, whether as a Holder or as an underwriter, placement, sales agent or broker or dealer in respect thereof, or otherwise, the Company will, upon the reasonable request of such broker-dealer, comply with any reasonable request of such broker-dealer in complying with the Participating Shareholders FINRA Rules;
(k) notwithstanding any other provision of this Agreement, if the Board of Directors of the Company has determined in good faith that the disclosure necessary for continued use of the prospectus and registration statement by the Holders could be materially detrimental to the Company, the Company shall have the right not to file or not to cause the effectiveness of any registration covering any Registrable Securities and to suspend the use of the prospectus and the registration statement covering any Registrable Security for such period of time as its use would be materially detrimental to the Company by delivering written notice of such suspension to all Holders listed on the Company’s records; provided, however, that in any 12-month period the Company may exercise the right to such suspension not more than twice. From and after the date of a notice of suspension under this Section 3.1(k), each Holder agrees not to use the prospectus or registration statement until the earlier of (i) notice from the Company that such suspension has been lifted or (ii) the day following the sixtieth (60th) day of suspension within any 12-month period;
(l) cooperate with, and direct the Company’s transfer agent to cooperate with, the Holders and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates or book-entry representing Registrable Securities to be sold together with any other authorizations, certificates, opinions and not bearing any restrictive legends; directions required by the transfer agent which authorize and enable direct the transfer agent to issue such Registrable Securities to be in without restriction upon sale by the holder of such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale shares of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all shares of Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other national securities exchange on which similar securities issued by the Company are Common Stock is then listed if requested by Shareholder or the managing underwriters, if any;listed; and
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or cause its officers to use their reasonable best efforts to support the managing underwriters, if any, reasonably request in order to expedite or facilitate marketing of the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a participation in “road shows” and other customary lock-up period) and confirm the accuracy of the same if and when requestedmarketing activities, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(lvirtual), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cryoport, Inc.), Securities Purchase Agreement (Cryoport, Inc.)
Registration Procedures. Whenever If and whenever the Company is required by the provisions of this Agreement to use all commercially reasonable efforts to effect or cause a Shareholder has requested that any Registrable Securities be registration as provided in this Agreement and at such times as customarily occur in registered pursuant to this Agreementofferings or shelf takedowns, as applicable, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its Use all commercially reasonable best efforts to prepare and file with the SEC not later than sixty SEC, a registration statement within the time periods specified herein, and use its commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable and to remain effective under the Securities Act until the earlier of such time as all securities covered thereby are no longer Registrable Securities or twenty-four (6024) days months after receipt of the relevant Demand Request (which sixty (60) day such registration statement becomes effective with respect to registrations pursuant to Section 2(a), in every case as any such period may be extended by pursuant to Section 5(h) or Article 7 hereto (provided that the Company for up to an additional sixty (60) days if at the time of such request may replace a shelf registration statement filed on Form S-1 with a shelf registration statement filed on Form S-3 as and when the Company is engaged in negotiations in anticipation of its participation in becomes eligible to file S-3 registration statements as long as such a material merger, acquisition or other form of business combination or, if by reason of shelf registration statement filed on Form S-1 remains effective until such transaction, time as the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such replacement shelf registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement statement filed on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become Form S-3 becomes effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare Prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a such period of not less than ninety time required by Section 5(a) above, as such period may be extended pursuant to Section 5(h) or Article 7 hereto;
(90c) daysWithin a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the Holders of the Registrable Securities being sold and to the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; cause fairly consider such reasonable changes in any such documents prior to or after the Prospectus filing thereof as the counsel to the Holders of the Registrable Securities being sold or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the Holders of the Registrable Securities being sold or any underwriter available for discussion of such documents;
(d) Within a reasonable time prior to the filing of any document which is to be supplemented incorporated by any required Prospectus supplementreference into a registration statement or a prospectus, provide copies of such document to counsel for the Holders and underwriters; fairly consider such reasonable changes in such document prior to or after the filing thereof as so supplemented to be filed pursuant to Rule 424 under the Securities Actcounsel for such Holders or such underwriter shall request; and comply make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
(e) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in during which any such Registration Statement or supplement registration statement is required to the Prospectusbe effective;
(df) notify Furnish to any Holder and any underwriter of Registrable Securities, (i) such number of copies (including manually executed and conformed copies) of such registration statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (ii) such number of copies of the Participating Shareholders prospectus, used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and the final prospectus), and (iii) such number of copies of other documents, in each case as such Holder or such underwriter may reasonably request;
(g) Use all commercially reasonable efforts to register or qualify all Registrable Securities covered by such registration statement under the securities or “blue sky” laws of states of the United States as any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject;
(h) Cooperate with the Holders of the Registrable Securities being sold and the sole underwriter or managing underwritersunderwriter of an underwritten offering shares, if any, promptlyto facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the Holders of the Registrable Securities being sold or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five days prior to any sale of such shares;
(i) Use, as soon as practicable after the effectiveness of the registration statement, commercially reasonable efforts to cause the Registrable Securities covered by such registration statement to be registered with, or approved by, such other United States public, governmental or regulatory authorities, if any, as may be required in connection with the disposition of such Registrable Securities;
(j) Use its commercially reasonable best efforts to list the securities covered by such registration statement on any securities exchange on which any securities of the Company is then listed, if the listing of such Registrable Securities are then permitted under the applicable rules of such exchange;
(k) Use all reasonable efforts to facilitate the distribution and sale of any shares of Common Stock to be offered pursuant to this Agreement, including without limitation by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be requested by the Holders of the Registrable Securities being sold or the lead managing underwriter of an underwritten offering;
(l) Notify each Holder as promptly as practicable and, if requested by any such Person) Holder, confirm such advice notification in writing, (i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the Registration Statement a registration statement or any post-effective amendmentamendment thereto, when the same has become effectivebeen declared effective by the SEC, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending or the effectiveness coming to the Company’s attention of the Registration Statement or the initiation of any proceedings for that such or a similar purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (viii) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (viiv) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus to a registration statement or any document incorporated therein by reference in order to make the statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of related prospectus so that such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder 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 to make the statements therein, in light of the circumstances under which they are made, not misleading;), and (v) of the Company’s determination that the filing of a post-effective amendment to the Registration Statement shall be necessary or appropriate. Upon the receipt of any notice from the Company of the occurrence of any event of the kind described in clause (iv) or (v) of this Section 5(l), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders’ possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the registration statements are required to be effective as set forth under Section 5(a) shall be extended by the number of days from and including the date such notice is provided, to and including the date when Holders shall have received copies of the corrected prospectus; and
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter Enter into such agreements (including an underwriting agreement) and take all such other appropriate actions in connection therewith as Participating Shareholders or the managing underwriters, if any, are customary and reasonably request in order necessary 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitationin the case of an underwritten offering, an agreement to not sell equity securities during a underwriting agreements in customary lock-up period) and confirm the accuracy of the same if and when requestedform, and matters relating including provisions with respect to the compliance of the Registration Statement indemnification and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be contribution in customary form and covering matters of consistent with the type customarily covered provisions relating to indemnification and contribution contained herein), and in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered intothat regard, deliver to the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver Holders such documents and certificates as may be reasonably requested by any Holder of the Participating Shareholders and Registrable Securities being sold or, as applicable, the managing underwriters, if any, to evidence the Company’s compliance with clause this Agreement including, without limitation, using all commercially reasonable efforts to cause its independent accountants to deliver to the Company (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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating Holders of Registrable Securities being sold in any disposition pursuant registration) an accountants’ comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement or, if such registration statementletter can not be obtained through the exercise of all commercially reasonable efforts, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees its independent accountants to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish deliver to the Company such information (and documents regarding to the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition Holders of Registrable Securities until such Shareholder's receipt of being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the copies of the supplemented Company’s financial statements included or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (registration statement at the Company's expense) all copies, other than permanent file copies highest level permitted to be given by such accountants under the then in such Shareholder's possession, applicable standards of the Prospectus covering Association of Independent Certified Accountants with respect to such Registrable Securities current at the time of receipt of such noticeregistration statement. If In addition, the Company shall give such notice, furnish to the time periods mentioned Holders of Registrable Securities being included in Section 5(c) hereof shall be extended by the number any registration hereunder an opinion of days during the period from counsel in substance and including the date of the giving of such notice pursuant scope to Section 5(d)(vi) that customarily delivered to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceunderwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (Graham Packaging Co Inc.), Registration Rights Agreement (Graham Packaging Co Inc.)
Registration Procedures. Whenever a Shareholder has Whenever, pursuant to Section 1 or 2, the Holders of Restricted Stock have requested that any Registrable Securities Restricted Stock be registered pursuant to this Agreementregistered, the Company shall promptly take will, subject to the provisions of Section 4, use all such actions as may be necessary or desirable reasonable efforts to permit effect the registration and the sale or distribution of such Registrable Securities Restricted Stock in accordance with the intended method or methods of disposition thereofthereof as promptly as practicable, and pursuant thereto in connection with any such request, the Company shall as expeditiously as possibleshall:
(aA) in connection with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3Section 1, use its reasonable best efforts to prepare and file with the SEC SEC, not later than sixty forty-five (6045) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material mergerrequest, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement statement on a any form for which the Company then qualifies and which is satisfactory to counsel for the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) shall deem appropriate and which form shall be available for the sale resale of such Restricted Stock pursuant to Rule 415 of the Registrable General Rules and Regulations of the SEC promulgated under the Securities in accordance with the intended method or methods of distribution thereofAct, and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; provided that (i) the Company shall not be required to file any Registration Statement a registration statement pursuant to Article 3 this subsection (A) other than on Form S-3 or any amendment thereto a similar form that permits the incorporation by reference from reports filed pursuant to the Exchange Act and (ii) if the Board of Directors of the Company has determined in its good faith judgment that the filing of such registration statement would materially adversely affect a pending or any Prospectus proposed public offering of the Company's securities or any supplement thereto (including would otherwise be significantly disadvantageous to the Company and the Company shall furnish to Holders making such documents incorporated a request a certificate signed by reference) to which either the Participating Shareholders chief executive officer or the underwriters, if any, shall reasonably object in light chief financial officer of the requirements Company stating that the Board of Directors has made such determination, the Securities Act or any other applicable laws or regulations;
Company shall have an additional period of not more than 180 days within which to file such registration statement (b) provided that the Company shall be entitled to furnish such a certificate only once); and provided further that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and one counsel selected by the underwriters, if any, Holders of a majority in number of shares of the Restricted Stock covered by such registration statement copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review and the Company shall make comment of such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anycounsel;
(cB) subject in connection with a registration pursuant to paragraph (b) aboveSection 1, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety 270 days or such shorter period as shall terminate when the distribution of all Restricted Stock covered by such registration statement shall have terminated (90but in no event prior to the expiration of the applicable period referred to in Section 4(3) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under of the Securities Act; Act and Rule 174 thereunder), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods of disposition by the Participating Shareholders selling Holders thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(fC) as promptly soon as practicable after reasonably practicable, furnish to such selling Holders, prior to filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)a registration statement, provide copies of such document registration statement as proposed to counsel be filed, and thereafter furnish to the Participating Shareholders such selling Holders such number of copies of such registration statement, each amendment and to the managing underwriters;
supplement thereto (g) provide to the Participating Shareholders and in each managing underwritercase, without charge, at least one signed copy of the Registration Statement and any post-effective amendment theretoif specified by such Holders, 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 thereto), the prospectus included in such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons selling Holders may reasonably request; request in order to facilitate the Company consents to the use disposition of the Prospectus or any amendment or supplement thereto Restricted Stock owned by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretosuch selling Holders;
(iD) prior to the date on which the Registration Statement is declared effectivewith reasonable promptness, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, qualify such Registrable Securities for offer and sale Restricted Stock under the such other securities or blue sky laws of such jurisdictions within the United States as any seller or underwriter selling Holder reasonably (in light of such selling Holder's intended plan of distribution) requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities covered Restricted Stock owned by the Registration Statementsuch selling Holder; provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not otherwise be required to qualify such Registrable Securities but for this subsection (D), or (ii) subject itself to taxation in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(jE) cooperate with the Participating Shareholders and the managing underwritersreasonable promptness, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities Restricted Stock covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof or the underwriters, if any, selling Holders thereto to consummate the disposition of such Registrable SecuritiesRestricted Stock;
(lF) upon promptly notify each selling Holder of such Restricted Stock, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event contemplated by paragraph (d)(vi) above, prepare known to the Company requiring the preparation of a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers or recipients of the Registrable Securitiessuch Restricted Stock, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading and promptly make available to each selling Holder any such supplement or amendment;
(mG) use its reasonable best efforts promptly notify each selling Holder of Restricted Stock of any stop order issued or, to cause all Registrable Securities covered the knowledge of the Company, threatened by the Registration Statement SEC and take all reasonable actions to be listed on prevent the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed entry of such stop order or to remove it if requested by Shareholder or the managing underwriters, if anyentered;
(nH) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) reasonable promptness make available for inspection during normal business hours by the Participating Shareholdersany selling Holder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriterselling Holder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and the properties of the CompanyCompany (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors officers and employees to supply all information reasonably requested for such purpose by the Participating Shareholders or any such underwriter, attorney, accountant or agent Inspector in connection with such registration statement; provided . Each Inspector that any records, information or documents that are designated actually reviews Records supplied by the Company that include information that the Company identifies, in writing as good faith, to be confidential ("Confidential Information") shall be kept confidential required, prior to any such review, to execute an agreement with the Company providing that such Inspector shall not publicly disclose any Confidential Information unless such disclosure is required by applicable law or legal process. Each selling Holder of Restricted Stock agrees that Confidential Information obtained by it as a result of such Personsinspections shall not be used by it as the basis for any transactions in securities of the Company unless and until such information is made generally available to the public. Each selling Holder of Restricted Stock further agrees that it will, upon learning that disclosure of Confidential Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Confidential Information. Each selling Holder also agrees that the due diligence investigation made by the Inspectors shall be conducted in a manner which shall not unreasonably disrupt the operations of the Company or the work performed by the Company's officers and employees;
(qI) in the event such sale is pursuant to an underwritten offering of Restricted Stock related to a request pursuant to Section 2, use its reasonable efforts to obtain a comfort letter or letters 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;
(J) 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, an earnings statements satisfying statement covering a period of twelve months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(rK) take with reasonable promptness, use its reasonable efforts to cause all such other reasonable steps that are necessary or advisable Restricted Stock to permit be listed on each securities exchange on which the sale Common Stock of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding is then listed, provided that the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writingapplicable listing requirements are satisfied. Each Shareholder selling Holder of Restricted Stock agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(visubsection (F) hereof, such Shareholder selling Holder will forthwith discontinue disposition of Registrable Securities Restricted Stock pursuant to the registration statement covering such Restricted Stock until such Shareholderselling Holder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing subsection (F) hereof. In 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, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If event the Company shall give any such notice, the time periods mentioned in Section 5(c) hereof Company shall extend the period during which such registration statement shall be extended maintained effective pursuant to this Agreement (including the period referred to in subsection (B)) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(visubsection (F) hereof to and including the date when each selling Holder of Restricted Stock covered by such Participating Shareholder registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(lsubsection (F) hereof. Each selling Holder also agrees to notify the Company if any event relating to such selling Holder occurs which would require the preparation of a supplement or amendment to the Adviceprospectus so that 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 not misleading.
Appears in 2 contracts
Sources: Registration Rights Agreement (Conrad Industries Inc), Registration Rights Agreement (Conrad Industries Inc)
Registration Procedures. Whenever In the case of each registration, qualification, or compliance effected by the Company pursuant to Section 4(a), the Company will keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as to the initiation of each registration, qualification, and compliance and as to the completion thereof. In addition, the Company hereby agrees as follows with respect to the Registration Statement.
(i) The Company will use its commercially reasonable efforts to cause the Registration Statement to become and remain effective at least for a Shareholder has requested that any period ending with the first to occur of (A) the sale by the Holders of all Registrable Securities be registered covered by the Registration Statement, (B) the availability under Rule 144 for the Holders to immediately, freely resell without restriction or filing with the SEC all Registrable Securities covered by the Registration Statement, or (C) the date that is two years after the SEC Effective Date (provided, however, that if the Company files the Registration Statement on Form S-1 and subsequently becomes eligible to use Form S-3, it may file a post-effective amendment to such Form S-1 on Form S-3 prior to the end of such period and use its commercially reasonable efforts to cause the Registration Statement as amended to become effective until the end of such period) (in any such case, the “Effectiveness Period”). At any time after the end of the Effectiveness Period, if (a) the Holders Beneficially Own Registrable Securities representing more than 10% of the fully diluted equity interests in the Company (calculated giving effect to the exercise of all outstanding options, warrants and other rights to purchase to acquire any Common Stock of the Company) or (b) any nominee designated by the Investors pursuant to this AgreementSection 2(a) is a member of the Board, then (x) as promptly as reasonably practicable after the written request of Holders of greater than 50% of the Registrable Securities, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty another shelf registration statement on Form S-1 (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days or, if at the time of such request the Company is engaged eligible to use such form, Form S-3) relating to the registration of the offer and resale by the Holders of all of the Registrable Securities, (y) the provisions of this Agreement (including without limitation the provisions of Section 4(a) and Section 4(b)) shall apply to such registration statement and (z) such registration statement shall be deemed to be the Registration Statement (as defined in negotiations in anticipation Section 4(a)) for purposes of its participation in a material merger, acquisition or other form of business combination or, if this Agreement.
(ii) If the Registration Statement becomes subject to review by reason of such transactionthe SEC, the Company is not in a position will promptly respond to timely prepare all comments and file diligently pursue resolution of any comments to the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president satisfaction of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;SEC.
(biii) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the The Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, will prepare and file with the SEC such amendments and post-effective amendments supplements to the Registration Statement and any prospectus used in connection therewith as may be reasonably necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause during the Prospectus to be supplemented by any required Prospectus supplementEffectiveness Period, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and will comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended methods method(s) of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement or supplement to the Prospectus;Statement.
(div) notify the Participating Shareholders and the managing underwritersThe Company will furnish, if anywithout charge, promptly, and to each Holder (if requested by any such PersonA) confirm such advice in writing, (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 same has become effective, (ii) a reasonable number of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness copies of the Registration Statement or the initiation of (including any proceedings for that purposeexhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto as such Holder may request, (ivB) if at any time any such number of copies of the representations or warranties prospectus included in such Registration Statement (including each preliminary prospectus and any other prospectus filed under Rule 424 under the Securities Act) as such Holder may request, in conformity with the requirements of the Company contemplated by paragraph Securities Act, and (oC) below cease such other documents as such Holder may reasonably request in order to be true and correct, (v) of facilitate the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction or owned by such Holder, but only during the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;Effectiveness Period.
(ev) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, will use its commercially reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the such other applicable securities or blue sky laws of such jurisdictions as any seller or underwriter Holder reasonably requests in writing as may be necessary for the marketability of the Registrable Securities (such request to be made by the time the Registration Statement is deemed effective by the SEC) and do any and all other acts or and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch Holder; 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 otherwise be required to qualify but for this paragraph (v), (B) subject itself to taxation in any such jurisdiction, or to take any action which would subject it (C) consent to general service of process or taxes in any such jurisdiction where it is not then so subject; providedjurisdiction.
(vi) As promptly as practicable after becoming aware of such event, further, that the Company will not be required to qualify notify each Holder of such Registrable Securities in at any jurisdiction in time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities comes to the terms, provisions and restrictions Company’s attention if as a result of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities such event the prospectus included in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement contains an untrue statement of a material fact or omits to state any material fact required to be registered with stated therein or approved by such other governmental agencies or authorities within the United States as may be necessary to enable make the seller or sellers thereof or statements therein not misleading, and the underwriters, if any, Company shall promptly prepare and furnish to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare Holder a supplement or post-effective Amendment amendment to such prospectus (or prepare and file appropriate reports under the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document Exchange Act) so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;, unless suspension of the use of such prospectus otherwise is authorized herein or in the event of a Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the termination of such suspension or Blackout Period.
(mvii) The Company will comply, and continue to comply during the period that the Registration Statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the SEC with respect to the disposition of all securities covered by the Registration Statement.
(viii) As promptly as practicable after becoming aware of such event, the Company will notify each Holder of Registrable Securities being offered or sold pursuant to the Registration Statement of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement.
(ix) The Company will permit the Holders of Registrable Securities being included in the Registration Statement and their legal counsel, at such Holders’ sole cost and expense to review and have a reasonable opportunity to comment on the Registration Statement and all amendments and supplements thereto at least two Business Days prior to their filing with the SEC.
(x) The Company will make available for inspection by any Holder and any Inspector retained by such Holder, at such Holder’s sole expense, all records as shall be reasonably necessary to enable such Holder to exercise its due diligence responsibility, and cause the Company’s officers, directors, and employees to supply all information which such Holder or any Inspector may reasonably request for purposes of such due diligence; provided, however, that such Holder shall hold in confidence and shall not make any disclosure of any record or other information which the Company determines in good faith to be confidential, and of which determination such Holder is so notified at the time such Holder receives such information, unless (w) such Holder had, or obtained, knowledge of such information without violation of or protection under any agreements with the Company or, to its knowledge any third party, (x) the disclosure of such record is reasonably necessary to avoid or correct a misstatement or omission in the Registration Statement and a reasonable time prior to such disclosure the Holder shall have informed the Company of the need to so correct such misstatement or omission and the Company shall have failed to correct such misstatement of omission, (y) the release of such record is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (z) the information in such record has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company shall not be required to disclose any confidential information in such records to any Inspector until and unless such Inspector shall have entered into a confidentiality agreement with the Company with respect thereto, containing terms substantially similar to those set forth in this Section 4(b)(x), which agreement shall permit such Inspector to disclose records to the Holder who has retained such Inspector. Each Holder agrees that it shall, upon learning that disclosure of such records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the records deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning a Holder provided to the Company pursuant to this Agreement unless (A) disclosure of such information is reasonably necessary to comply with federal or state securities laws, (B) disclosure of such information to the SEC’s Staff of the Division of Corporation Finance is reasonably necessary to respond to comments raised by such staff in its review of the Registration Statement, (C) disclosure of such information is reasonably necessary to avoid or correct a misstatement or omission in the Registration Statement, (D) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (E) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Holder and allow such Holder, at such Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(xi) The Company will use its commercially reasonable best efforts to cause all the Registrable Securities covered by the Registration Statement to be listed or quoted on the Nasdaq National Market and each other exchange principal securities market on which similar securities of the same class or series issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;traded.
(nxii) The Company will provide a transfer agent and registrar registrar, which may be a single entity, for the Registrable Securities at all Registrable Securities;times.
(oxiii) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or The Company will cooperate with the managing underwriters, if any, reasonably request in order Holders of Registrable Securities being offered pursuant to expedite or the Registration Statement to facilitate the disposition timely preparation and delivery of such certificates (not bearing any restrictive legends) representing Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers be offered pursuant to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and enable such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters certificates to be in customary form such denominations or amounts as the Holders may reasonably request and covering matters registered in such names as the Holders may request.
(xiv) The Company will take all other reasonable actions necessary to expedite and facilitate disposition by the Holders of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified Registrable Securities pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such including without limitation making its chief executive officer, president, chief financial officer and other reasonable steps that are necessary or advisable appropriate officers and personnel available to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders participate in marketing efforts with respect to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceregistered underwritten public offering.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Allis Chalmers Energy Inc.), Investors Rights Agreement (Allis Chalmers Energy Inc.)
Registration Procedures. Whenever a Shareholder has requested that any If and whenever the Company is required by the provisions hereof to effect the registration of the Registrable Securities be registered pursuant to this Agreementunder the Act, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofwill, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of Commission a registration statement with respect to such securities, promptly as possible respond to any comments received from the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, Commission and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; and remain effective for the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light period of the requirements distribution contemplated thereby (determined as herein provided), and promptly provide to the Purchaser copies of the Securities Act or any other applicable laws or regulationsall filings and Commission letters of comment;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the registration statement and to keep such Registration Statement during registration statement effective until the applicable earlier of: (i) six months after the latest exercise period of the Warrant; (ii) four years after the Closing Date; or (iii) the date on which the Purchaser has disposed of all of the Registrable Securities covered by such registration statement in accordance with the Purchaser's intended methods method of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectusregistration statement for such period;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for Purchaser such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus registration statement and the prospectus included therein (including each preliminary prospectus) and any amendment as the Purchaser reasonably may request to facilitate the public sale or supplement thereto as such Persons may reasonably request; the Company consents to the use disposition of the Prospectus securities covered by such registration statement;
(d) use its commercially reasonable efforts to register or any amendment or supplement thereto by qualify the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Purchaser's Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the such registration or qualification of, such Registrable Securities for offer and sale statement under the securities or "blue sky sky" laws of such jurisdictions as any seller or underwriter the Purchaser reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementrequests; provided provided, however, that the Company will shall not for any such purpose be required to qualify generally to do transact business as a foreign corporation in any jurisdiction where it is not then so qualified or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(je) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause list the Registrable Securities covered by such registration statement with any securities exchange on which the Registration Statement to be registered with or approved by such other governmental agencies or authorities within Common Stock of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable SecuritiesCompany is then listed;
(lf) upon immediately notify the occurrence Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event contemplated by paragraph (d)(vi) above, prepare of which the Company has knowledge as a supplement or post-effective Amendment to result of which the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so thatprospectus contained in such registration statement, as thereafter delivered to the purchasers of the Registrable Securitiesthen in effect, the Prospectus will not contain includes an untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in light of the circumstances then existing; and
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(pg) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, Purchaser and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriterPurchaser all publicly available, all non-confidential financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all publicly available, non-confidential information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdvicePurchaser.
Appears in 2 contracts
Sources: Registration Rights Agreement (Digital Angel Corp), Registration Rights Agreement (Digital Angel Corp)
Registration Procedures. Whenever a Shareholder Investor has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article Section 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) 60 days after receipt of the relevant Demand Request such request (which sixty (60) -day period may be extended by the Company for up to an additional sixty (60) 60 days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") Investor a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders Investor (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article Section 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders Investor or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder Investor and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders Investor and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders Investor and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) 150 days, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold or withdrawn or such Registrable Securities cease to be 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; 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 Participating Shareholders Investor thereof set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders Investor and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i1) 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, (ii2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii3) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv4) if at any time any of the representations or and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi6) of the occurrence 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders Investor and to the managing underwriters;
(g) provide to the Participating Shareholders Investor and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders Investor and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders Investor and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders Investor and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders Investor submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders Investor agrees to do so;
(j) cooperate with the Participating Shareholders Investor and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days business days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vid)(6) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange or the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder Investor or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders Investor or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i1) make such representations and warranties to the Participating Shareholders Investor and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii2) 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) addressed to Participating Shareholders Investor and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders Investor and underwriters, if any; (iii3) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, accountants addressed to the Participating Shareholders Investor and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article Section 7 hereof with respect to all parties to be indemnified pursuant to said Section; and (v5) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders Investor and the managing underwriters, if any, to evidence compliance with clause (i1) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(p) make available for inspection during normal business hours by the Participating ShareholdersInvestor, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders Investor or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders Investor or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) 45 days after the end of any twelve (12)-month 12-month period (i1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii2) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month 12-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders Investor to furnish to the Company such information and documents regarding the Participating Shareholders Investor and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder Investor agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi5(d)(6) hereof, such Shareholder Investor will forthwith discontinue disposition of Registrable Securities until such ShareholderInvestor's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l)) hereof, or until it is advised in writing (the "ADVICEAdvice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder Investor will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such ShareholderInvestor's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi5(d)(6) to and including the date when such Participating Shareholder Investor shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) hereof or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Golden Telecom Inc), Registration Rights Agreement (Golden Telecom Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered (a) In connection with the registration of Company Stock pursuant to this AgreementSection 3, the Company shall promptly take all such actions as may be necessary or desirable (subject to permit Sections 3.2(b) and 3.3(b)) use its reasonable best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method or methods method(s) of disposition thereof, and pursuant thereto the Company shall distribution thereof as expeditiously as possiblepracticable, and in connection therewith:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to The Company shall prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant effective and keep such registration statement effective for a period of up to Article 3 or any amendment thereto or any Prospectus or any supplement thereto one hundred twenty (including such documents incorporated by reference120) to which the Participating Shareholders or the underwritersdays or, if anyearlier, until the distribution contemplated in the registration statement has been completed; provided, however, that such one hundred twenty (120) day period shall reasonably object be extended for a period of time equal to the period the Holder whose Registrable Securities are included in light such registration refrains, at the request of the requirements of the Securities Act or an Underwriter, from selling any other applicable laws or regulations;securities included in such registration.
(bii) before The Company shall, prior to filing a Registration Statement or Prospectus prospectus, or any amendments amendment or supplements thereto (excluding documents supplement thereto, furnish without charge to each Holder whose Registrable Securities are included in such registration, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as are included in such registration as legal counsel for such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder.
(iii) After the filing of a Registration Statement, the Company shallshall promptly, at least five and in no event more than two (52) business days before after such filing, furnish notify each Holder whose Registrable Securities are included in such Registration Statement of such filing, and shall further notify each such Holder promptly in writing in all events within two (2) business days of the occurrence of any of the following: (A) when such Registration Statement becomes effective; (B) when any post-effective amendment to each Participating Shareholder and such Registration Statement becomes effective; (C) the underwriters, if any, copies issuance or threatened issuance by the Commission of all such documents in substantially the form proposed to be filed any stop order (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make take all actions required to prevent the entry of such reasonable changes stop order or to remove it if entered); and (D) any request by the Commission for (1) any amendment or supplement to such Registration Statement or any prospectus relating thereto or (including changes to2) additional information of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments thereafter delivered to the Registration Statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; 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 purchasers 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 Statement, such prospectus will not contain an untrue statement of disposition by the Participating Shareholders set forth in such Registration Statement a material fact or supplement omit to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by state any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease material fact required to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction stated therein or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleading;. The Company shall promptly make available to each Holder whose Registrable Securities are included in such Registration Statement any such supplement or amendment.
(eiv) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after Before filing with the SEC of any document which is incorporated by reference into the Commission a Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus prospectus or any amendment or supplement thereto;, the Company shall furnish to each Holder whose Registrable Securities are included in such Registration Statement and to the legal counsel for any such Holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such Holder and their legal counsel with a reasonable opportunity to review such documents and comment thereon.
(iv) prior to the date on which the Registration Statement is declared effective, The Company shall use its reasonable best efforts to (A) register or qualify, qualify the Registrable Securities under such securities or cooperate with “blue sky” Laws of such jurisdictions (domestic or foreign) as the Participating Shareholders Holders whose Registrable Securities are included in such Registration Statement (in light of the intended plan of distribution) may reasonably request and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, (B) take such action necessary to cause such Registrable Securities for offer covered by the Registration Statement to be registered with or approved by such other Governmental Entity as may be necessary by virtue of the business and sale under operations of the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing Company and do any and all other acts or and things that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdictions 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 but for this paragraph or subject itself to taxation in any such jurisdiction or take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided.
(vi) The Company shall enter into customary agreements (including, furtherif applicable, that an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the Company will not disposition of such Registrable Securities. No Holder whose Registrable Securities are included in such Registration Statement shall be required to qualify make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Holder’s organization, good standing, authority, title to such Holder’s Common Stock, lack of conflict of such sale with such Holder’s material agreements and organizational documents, with respect to written information relating to such Holder that it has furnished in writing expressly for inclusion in such Registration Statement, and any other customary representations or warranties requested by the Underwriter(s) selected for such underwriting.
(vii) The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer of the Company and other appropriate officers and members of the management of the Company shall cooperate reasonably in any offering of Registrable Securities hereunder, which cooperation shall include (A) the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, (B) participation in any jurisdiction in which meetings with Underwriter(s), prospective purchasers, attorneys, accountants and the securities regulatory authority requires that the Participating Shareholders submit any shares of its Holders whose Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities are included in such jurisdiction unless the Participating Shareholders agrees to do so;
registration, including participation in customary road shows, investor conferences and other similar presentations and (jC) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate facilitating the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive restricted legends; and enable such .
(viii) The Company shall make reasonably available for inspection by the Holders whose Registrable Securities to be are included in such denominations Registration Statement, any Underwriter(s) participating in any disposition pursuant to such Registration Statement and registered any attorney, accountant or other professional retained by such Holders or any Underwriter, all information reasonably requested by any Holder whose Registrable Securities are included in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or any Underwriter, and cause the Prospectus or Company’s officers, directors and employees to supply all information so requested by any document incorporated therein of them in connection with such Registration Statement.
(ix) The Company shall furnish to each Holder whose Registrable Securities are included in any Registration Statement a signed counterpart, addressed to such Holder, of (A) any opinion of counsel to the Company delivered to any Underwriter and (B) any comfort letter from the Company’s independent registered public accountants delivered to any Underwriter, to the extent permitted by reference or file any other required document so thatthe professional standards governing the accounting profession at the time.
(x) The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its stockholders, as thereafter delivered to soon as practicable, an earnings statement covering a period of twelve (12) months, beginning as soon as practicable (and in any event within three (3) months after the purchasers effective date of the Registrable SecuritiesRegistration Statement), which earnings statement shall satisfy the Prospectus will not contain an untrue statement provisions of a material fact or omit to state any material fact necessary to make Section 11(a) of the statements therein not misleading;Securities Act and Rule 158 thereunder.
(mxi) The Company shall use its reasonable best efforts to cause all Holders’ Registrable Securities covered by the Registration Statement included in any registration to be listed (or continue to be listed) on such exchanges or otherwise designated for trading in the Nasdaq National Market and each other exchange on which same manner as similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;designated.
(nxii) provide If any such Registration Statement or comparable filing refers to any Holder by name and if such Holder, in its sole and exclusive judgment, is or might be deemed to be an underwriter or a transfer agent controlling Person of the Company, such Holder shall have the right to require (A) the insertion therein of language, in form and registrar for all Registrable Securities;substance reasonably satisfactory to such Holder and presented to the Company in writing, to the effect that the holding by such Holder of such shares of Company Stock is not to be construed as a recommendation by such Holder of the investment quality of the Company’s securities covered thereby, and that such holding does not imply that such Holder shall assist in meeting any future financial requirements of the Company, or (B) in the event that such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal or state statute then in force, the deletion of the reference to such Holder.
(ob) enter into such agreements (including an underwriting agreement) The Company shall bear all costs and take all such other actions expenses incurred in connection therewith as Participating Shareholders with any registration pursuant to Section 3, and all expenses incurred in performing or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connectioncomplying with its other obligations under this Agreement, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Registration Statement becomes effective, including: (i) make all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” Laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.4(a)(xi); (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent registered public accountants retained by the Company (including the expenses or costs associated with the delivery of any opinions or comfort letters requested pursuant to Section 3.4(a)(ix); (g) the fees and expenses of any special experts retained by the Company in connection with such representations registration; (viii) the reasonable fees and warranties expenses of legal counsel (one firm) selected by Majority Holders; and (ix) fees and expenses incurred by the Company or by any Underwriter(s) if and to the Participating Shareholders extent that any Holder would otherwise be responsible therefor in connection with the marketing and disposition of Registrable Securities in an Underwritten Offering in the underwritersmanner reasonably requested by the Underwriters for such Underwritten Offering, including through the use of customary road shows, investor conferences and other similar presentations in accordance with Section 3.4(a)(vii). All Selling Expenses relating to Registrable Securities registered pursuant to Section 3 shall be borne and paid by the Holder’s Pro Rata on the basis of the number of Registrable Securities registered on their behalf.
(c) Each Holder shall provide such information as may reasonably be requested by the Company, or the managing Underwriter, if any, in formconnection with the preparation of any Registration Statement pursuant to Section 3, substance including amendments and scope as are customarily made by issuers supplements thereto, in order to underwriters effect the registration of any Registrable Securities under the Securities Act pursuant to Section 3 and in primary underwritten offerings connection with the Company’s obligation to comply with federal and applicable state securities Laws. At least ten (including10) business days prior to the first anticipated filing date of any such Registration Statement, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy Company shall notify each Holder of the same if information the Company requires from such Holder and when requested, and matters relating each such Holder shall provide such information to the compliance Company at least four (4) business days prior to such first anticipated filing date of such Registration Statement. The Company shall have the right to exclude any Holder that does not comply with the Company’s request for information pursuant to this Section 3.4(c) from the requisite Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and preclude such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof Holder from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which selling Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicethereunder.
Appears in 2 contracts
Sources: Registration Rights and Stockholders’ Agreement (Graftech International LTD), Registration Rights and Stockholders’ Agreement (GrafTech Holdings Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Section 2.1 and, as applicable, 2.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file Commission the Registration Statement and the Company furnishes or amendments thereto, to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed including such audited financial statements as may be required by the president Securities Act or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company rules and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file Commission, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.1); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the Holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(c) subject to paragraph (b) abovewith respect to any registration statement pursuant to Section 2.1, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement until the earlier to occur of five (5) years after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive days or an aggregate of 30 days in such five (5) years period) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the “Registration Statement during Maintenance Period”);
(c) furnish to each of the applicable period sellers of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in accordance each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the intended methods requirements of the Securities Act, and such other documents, as such seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller; provided, however, if any such documents are available on the Participating Shareholders set forth in Commission’s website or another website, the Company shall not be required to provide copies of such Registration Statement or supplement to the Prospectusdocuments;
(d) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws as any seller thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such seller to consummate the disposition in such jurisdictions of the securities owned by such seller, 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 wherein it would not but for the requirements of this subdivision (d) be obligated to be so qualified or to consent to general service of process in any such jurisdiction;
(e) use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;
(f) notify the Participating Shareholders Sellers’ Representative and the managing underwriters, if any, promptly, its counsel promptly and (if requested by any such Person) confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(i1) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v4) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(g) notify each seller of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and at the request of any such seller promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, except if such documents are available on the SEC or another website, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(eh) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holdersHolders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five Act and Rule 158 thereunder;
(45j) days after enter into such agreements and take such other actions as the end of any twelve Sellers’ Representative shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting seller) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rk) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder The failure to provide such information shall toll any Default Fee until such information is provided. The Company will not file any registration statement pursuant to Section 2.1, or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference and proposed to be filed after the initial filing of the Registration Statement) to which the Sellers’ Representative shall reasonably object, provided that the Company may file such documents in a form required by law or upon the advice of its counsel. The Company represents and warrants to each holder of Registrable Securities that it has obtained all necessary waivers, consents and authorizations necessary to execute this Agreement and consummate the transactions contemplated hereby other than such waivers, consents and/or authorizations specifically contemplated by the Securities Purchase Agreement. The Fund agrees that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in subdivision (h) of this Section 5(d)(vi) hereof2.3, such Shareholder the Fund will forthwith discontinue the Fund’s disposition of Registrable Securities pursuant to the Registration Statement relating to such Registrable Securities until such Shareholder's Fund’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by subdivision (h) of this Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, 2.3 and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies copies, then in such Shareholder's possession, the Fund’s possession of the Prospectus covering prospectus relating to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hepalife Technologies Inc), Registration Rights Agreement (Hepalife Technologies Inc)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 6.1, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, 6.2 and pursuant thereto 6.3 the Company shall as expeditiously promptly as possible:practicable (in each case, to the extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare SEC and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review and comment of such counsel (it being understood that counsel to the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (x) in the case of a Demand Registration Statement pursuant to Section 6.1, the expiration of sixty (60) days after such registration statement becomes effective, (y) in the case of a Piggyback Registration pursuant to Section 6.2, the expiration of sixty (60) days after such registration statement becomes effective or supplement (z) in the case of a Shelf Registration pursuant to Section 6.3, the ProspectusShelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) 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 Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that the Company 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 or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(A) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC or any of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(ivD) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(oE) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding Proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holdersSelling Holders, as promptly as practicable, an earnings statements satisfying statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, no later than forty-five however, that the Company shall not be required to serve as such “market maker”;
(45xiv) days after cooperate with any Selling Holder and any underwriters and the end managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any twelve restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, if necessary or appropriate;
(12)-month period (ixv) commencing have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the end of case may be, take other actions to obtain ratings for any fiscal quarter in which Registrable Securities (if they are sold eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in a firm or best efforts underwriting the offering, and marketing or selling of the Registrable Securities;
(iixvi) beginning with the first month have appropriate officers of the Company's first fiscal quarter commencing after the effective date , and cause representatives of the Registration StatementCompany’s independent registered public accountants, which statements shall cover said twelve to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(12)-month periodsxvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement. Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(b) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof6.6(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l6.6(a)(ix) or and, if so directed by the Advice.Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event
Appears in 2 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreements (Moelis & Co)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required ----------------------- to use its best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in sections 2.1 and 2.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to prepare and (in the case of a request to file a Registration Statement covering Registrable Securities made registration pursuant to Article 3section 2.1, such filing to be made within 45 days after the initial request of one or more Initiating B-2 Holders or in any event as soon thereafter as possible) file with the Commission the requisite registration statement to effect such registration (including such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective, provided -------- however that the Company may discontinue any registration of its securities which are not Registrable Securities (and, under the circumstances specified in section 2.2(a), its securities which are Registrable Securities) at any time prior to the effective date of the registration statement relating thereto, provided further that before filing such -------- registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the review, but not the prior approval, of such counsel;
(ii) prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement or supplement (i) in the case of a registration pursuant to section 2.1, the Prospectusexpiration of 180 days after such registration statement becomes effective, or (ii) in the case of a registration pursuant to section 2.2, the expiration of 90 days after such registration statement becomes effective;
(diii) notify the Participating Shareholders furnish to each seller of Registrable Securities covered by such registration statement and the managing underwriterseach underwriter, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance securities being sold by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of seller such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents;
(h) deliver to the Participating Shareholders , as such seller and the underwritersunderwriter, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(iiv) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale other securities covered by such registration statement under the such other securities laws or blue sky laws of such jurisdictions as any seller thereof and any underwriter of the securities being sold by such seller shall reasonably request, to keep such registrations or underwriter qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such seller and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities covered securities 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 wherein it is would not then but for the requirements of this subdivision (iv) be obligated to be so qualified qualified, to subject itself to taxation in any such jurisdiction or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kv) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lvi) upon the occurrence furnish to each seller of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement a signed counterpart, addressed to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders seller and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.of:
Appears in 2 contracts
Sources: Quarterly Report, Preferred Stock Purchase Agreement (United Rentals Inc /De)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each Registration effected by ----------------------- the Company pursuant to this AgreementSection 2, the Company shall promptly take all such actions will keep each Holder participating therein advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities each Registration and as to the completion thereof. At its expense (except as otherwise provided in accordance with the intended method or methods of disposition thereof, and pursuant thereto Section 2.4 above) the Company shall as expeditiously as possiblewill use its best efforts to:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made keep such registration, qualification or compliance pursuant to Article 3Sections 2.1, use its reasonable best efforts to prepare and file with 2.2 or 2.3 effective for a period of 180 days or until the SEC not later than sixty (60) days after receipt of Holder or Holders have completed the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that distribution described in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basisstatement relating thereto, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationswhichever first occurs;
(b) before filing furnish such number of prospectuses and other documents incident thereto as a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents Holder from time to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as time may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyrequest;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection with such registration statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement within the applicable time period referred to in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the ProspectusSection 2.5(a);
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) each Holder of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such registration statement, at any amendment or supplement thereto;
(i) prior time when a prospectus relating thereto covered by such registration statement is required to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale be delivered under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions Act, of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) above, prepare as a supplement or post-effective Amendment to result of which the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so thatprospectus included in such registration statement, as thereafter delivered to the purchasers of the Registrable Securitiesthen in effect, the Prospectus will not contain includes an untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in the light of the circumstances then existing; and
(me) use its reasonable best efforts to cause all furnish, at the request of any Holder requesting registration of Registrable Securities covered by the Registration Statement pursuant to be listed this Section 2, on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of date that such Registrable Securities and are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2, if such connectionsecurities are being sold through underwriters, whether or or, if such securities are not an underwriting agreement is entered into and whether or not being sold through underwriters, on the date that the registration is an underwritten registration statement with respect to such securities becomes effective, (i) make an opinion, dated such representations date, of the counsel representing the Company for the purposes of such registration, in form and warranties substance as is customarily given to the Participating Shareholders and underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders whose Registrable Securities are included in formsuch registration statement and (ii) if such securities are being sold through underwriters, a letter dated such date, from the independent certified public accountants of the Company, in form and substance and scope as are is customarily made given by issuers independent certified public accountants to underwriters in primary an underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary proceduresoffering, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Investor Rights Agreement (Network Access Solutions Corp), Investor Rights Agreement (Network Access Solutions Corp)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the 1933 Act as provided in Section 2.2 and, as applicable, 2.3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty the Registration Statement, or amendments thereto, to effect such registration (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60) days if at 1933 Act or the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare rules and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file SEC, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.2); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 25 consecutive Trading Days or an aggregate of 25 Trading Days during each year (each a "Black-Out Period")) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period"). The Company must notify the Investor within twenty four (24) hours prior to any Black-Out Period;
(iii) furnish to each holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the 1933 Act, in conformity with the requirements of the 1933 Act, and such other documents, as such holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement during registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such holder of Registrable Securities to consummate the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement jurisdictions of the securities owned by such holder of Registrable Securities, 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 wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or supplement to the Prospectusconsent to general service of process in any such jurisdiction;
(dv) notify use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Shareholders U.S. holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each holder of Registrable Securities a signed counterpart, addressed to such holder of Registrable Securities, and the managing underwriters, if any, promptlyof an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(if requested by any such Personvii) notify the Investor and its counsel promptly and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(ia) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iib) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iiic) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vd) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(viii) notify each holder of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence 1933 Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(e) misleading in the light of the circumstances then existing, and at the request of any such holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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 every reasonable effort the statements therein not misleading in the light of the circumstances then existing; use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qix) otherwise use its commercially 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, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five 1933 Act and Rule 158 thereunder;
(45x) days after enter into such agreements and take such other actions as the end of any twelve Investors shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting Investors) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rxi) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such holder of Registrable Securities and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Asia Premium Television Group), Registration Rights Agreement (Broadcast International Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant Subject to the other applicable provisions of this Agreement, in the case of each registration of Registrable Securities effected by the Company shall promptly take all such actions as may be necessary or desirable pursuant to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofArticle I, and pursuant thereto the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and promptly file with the SEC not later than sixty (60) days after receipt a registration statement with respect to such securities and use commercially reasonable efforts to cause such registration statement to become and remain effective for the period of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material mergerdistribution contemplated thereby, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 applicable provisions of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsthis Agreement;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection with such registration statement as may be necessary to keep the Registration Statement continuously such registration statement effective for a the period of not less than ninety specified in paragraph (90a) days; 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; above 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 registration statement in accordance with the Purchaser’s intended methods method of disposition by the Participating Shareholders distribution set forth in such Registration Statement registration statement for such period;
(c) furnish to the Purchaser, the Purchaser’s legal counsel, the underwriters and the underwriters’ legal counsel, if any, copies of the registration statement and the prospectus included therein (including each preliminary prospectus) and any amendment or supplement thereto proposed to the Prospectusbe filed and provide such legal counsel a reasonable opportunity to review and comment on such registration statement;
(d) if requested by the managing underwriter or underwriters, if any, or the Purchaser, promptly include in any prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or the Purchaser may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 2.1(d) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(e) in the event that the Registrable Securities are being offered in an Underwritten Offering, furnish to the Purchaser and to the underwriters of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus and final prospectus as the Purchaser or such underwriters may reasonably request in order to facilitate the public offering or other disposition of such securities;
(f) as promptly as reasonably practicable notify the Participating Shareholders Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act or of the Company’s discovery of the occurrence of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in the light of the circumstances then existing, and, subject to Section 2.2, at as promptly as is reasonably practicable, prepare and file with the SEC a supplement or post-effective amendment to such registration statement or the related prospectus or any document incorporated therein by reference or file any other required document, and furnish to the Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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 or incomplete in the light of the circumstances then existing;
(g) use commercially reasonable efforts to register and qualify (or exempt from such registration or qualification) the securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions within the United States as shall be reasonably requested in writing by the Purchaser; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdictions where it would not otherwise be required to qualify but for this subsection or (ii) take any action that would subject it to general service of process in any such jurisdictions;
(h) in the event that the Registrable Securities are being offered in a public offering, enter into an underwriting agreement, a placement agreement or equivalent agreement, in each case in accordance with the applicable provisions of this Agreement and take all such other actions reasonably requested by the Holders or the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities;
(i) in connection with an Underwritten Offering, promptlythe Company shall cause its officers to use their commercially reasonable efforts to support the marketing of the Registrable Securities covered by such offering (including participation in “road shows” or other similar marketing efforts);
(j) use commercially reasonable efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion dated such date of the legal counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, (ii) a “negative assurances letter”, dated such date of the legal counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and (iii) a “comfort” letter dated such date from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters;
(k) in the event that the Registrable Securities covered by such registration statement are shares of Common Stock, use commercially reasonable efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock is then listed;
(l) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(m) in connection with a customary due diligence review, make available for inspection by the Purchaser, any underwriter participating in any such disposition of Registrable Securities, if any, and any counsel or accountants retained by the Purchaser or underwriter (if collectively, the “Offering Persons”), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in customary due diligence sessions in each case reasonably requested by any such Personrepresentative, underwriter, counsel or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (i) confirm disclosure of such advice information is required by court or administrative order or in writingconnection with an audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, which shall include counsel, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the Offering Persons from a source other than the Company when such source, to the knowledge of the Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use of, or reliance on, information provided by the Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a registration statement or prospectus under this Agreement and except in the case of clause (i) above when a proposed disclosure is in connection with a routine audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor);
(n) cooperate with the Purchaser and each underwriter or agent participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA, including the use of commercially reasonable efforts to obtain FINRA’s pre-clearance or pre-approval of the registration statement and applicable prospectus upon filing with the SEC; and
(o) as promptly as is reasonably practicable notify the Purchaser (i) when the Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, filed and, with respect to the Registration Statement such registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or other federal or state governmental authority for amendments or supplements to the Registration Statement such registration statement or the Prospectus related prospectus or to amend or to supplement such prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement such registration statement or the initiation of any proceedings for that such purpose, (iv) if at any time any of the Company has reason to believe that the representations or and warranties of the Company contained in any agreement contemplated by paragraph (oSection 2.1(f) below above relating to any applicable offering cease to be true and correct, correct or (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder Purchaser agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi2.1(f), 2.1(o)(ii) hereofor 2.1(o)(iii), such Shareholder will forthwith discontinue the Purchaser shall discontinue, and shall cause each Holder to discontinue, disposition of any Registrable Securities covered by such registration statement or the related prospectus until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l)prospectus, which supplement or amendment shall, subject to the other applicable provisions of this Agreement, be prepared and furnished as soon as reasonably practicable, or until it the Purchaser is advised in writing (the "ADVICE") by the Company that the use of the Prospectus applicable prospectus may be resumed, and has have received copies of any amended or supplemented prospectus or any additional or supplemental filings which are incorporated incorporated, or deemed to be incorporated, by reference in the Prospectus, such prospectus (such period during which disposition is discontinued being an “Interruption Period”) and, if so directed requested by the Company, each Participating Shareholder will, or will request the underwriters to, deliver Holders shall use commercially reasonable efforts to return to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, their possession of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such noticerequest. If As soon as practicable after the Company shall give such noticehas determined that the use of the applicable prospectus may be resumed, the time periods mentioned Company will notify the Purchaser thereof. In the event the Company invokes an Interruption Period hereunder and in Section 5(c) hereof shall be extended by the number of days during the period from and including the date reasonable discretion of the giving of Company the need for the Company to continue the Interruption Period ceases for any reason, the Company shall, as soon as reasonably practicable, provide written notice to the Purchaser that such notice pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceInterruption Period is no longer applicable.
Appears in 2 contracts
Sources: Investor Rights Agreement (Plymouth Industrial REIT Inc.), Investment Agreement (Plymouth Industrial REIT Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the 1933 Act as provided in Section 2.2 and, as applicable, 2.3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty the Registration Statement, or amendments thereto, to effect such registration (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60) days if at 1933 Act or the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare rules and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file SEC, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.2); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 25 consecutive Trading Days or an aggregate of 25 Trading Days during each year (each a "Black-Out Period")) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period"). The Company must notify the Investor within twenty four (24) hours prior to any Black-Out Period;
(iii) furnish to holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the 1933 Act, in conformity with the requirements of the 1933 Act, and such other documents, as such holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement during registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such holder of Registrable Securities to consummate the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement jurisdictions of the securities owned by such holder of Registrable Securities, 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 wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or supplement to the Prospectusconsent to general service of process in any such jurisdiction;
(dv) notify use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Shareholders U.S. holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to holder of Registrable Securities at the address provided in the Securities Purchase Agreement a signed counterpart, addressed to such holder of Registrable Securities, and the managing underwriters, if any, promptlyof an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(if requested by any such Personvii) notify the Investor and its counsel promptly at the address provided in the Securities Purchase Agreement and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(ia) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iib) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iiic) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vd) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(viii) provide notice to the holder of Registrable Securities covered by such registration statement at the address provided in the Securities Purchase Agreement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence 1933 Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(e) misleading in the light of the circumstances then existing, and at the request of any such holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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 every reasonable effort the statements therein not misleading in the light of the circumstances then existing; use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qix) otherwise use its commercially 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, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five 1933 Act and Rule 158 thereunder;
(45x) days after enter into such agreements and take such other actions as the end of any twelve Investors shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting Investors) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rxi) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such holder of Registrable Securities and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Asia Premium Television Group), Registration Rights Agreement (Asia Premium Television Group)
Registration Procedures. Whenever a Shareholder has requested that any If and whenever the Company is required by the provisions hereof to effect the registration of the Registrable Securities be registered pursuant to this Agreementunder the Act, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofwill, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of a registration statement with respect to such securities, promptly as possible respond to any comments received from the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, SEC and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; and remain effective for the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light period of the requirements distribution contemplated thereby (determined as herein provided), and promptly provide to the Purchaser copies of the Securities Act or any other applicable laws or regulationsall filings and SEC letters of comment;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the registration statement and to keep such Registration Statement during registration statement effective until the applicable earlier of: (i) six months after the latest exercise period of the Warrant; (ii) four years after the Closing Date, or (iii) the date on which the Purchaser has disposed of all of the Registrable Securities covered by such registration statement in accordance with the Purchaser's intended methods method of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectusregistration statement for such period;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for Purchaser such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus registration statement and the prospectus included therein (including each preliminary prospectus) and any amendment as the Purchaser reasonably may request to facilitate the public sale or supplement thereto as such Persons may reasonably request; the Company consents to the use disposition of the Prospectus securities covered by such registration statement;
(d) use its commercially reasonable efforts to register or any amendment or supplement thereto by qualify the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Purchaser's Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the such registration or qualification of, such Registrable Securities for offer and sale statement under the securities or "blue sky sky" laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided Purchaser, provided, however, that the Company will shall not for any such purpose be required to qualify generally to do transact business as a foreign corporation in any jurisdiction where it is not then so qualified or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(je) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause list the Registrable Securities covered by such registration statement with any securities exchange on which the Registration Statement to be registered with or approved by such other governmental agencies or authorities within Common Stock of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable SecuritiesCompany is then listed;
(lf) upon immediately notify the occurrence Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event contemplated by paragraph (d)(vi) above, prepare of which the Company has knowledge as a supplement or post-effective Amendment to result of which the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so thatprospectus contained in such registration statement, as thereafter delivered to the purchasers of the Registrable Securitiesthen in effect, the Prospectus will not contain includes an untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in light of the circumstances then existing; and
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(pg) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, Purchaser and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriterPurchaser, all publicly available, non-confidential financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all publicly available, non-confidential information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdvicePurchaser.
Appears in 2 contracts
Sources: Registration Rights Agreement (Laurus Master Fund LTD), Registration Rights Agreement (Cycle Country Accessories Corp)
Registration Procedures. (a) Whenever a Shareholder has requested that the Purchaser requests the registration of any Registrable Securities be registered pursuant to under this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare register and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for permit the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition, and to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchaser. If the Company is not eligible to use its reasonable best efforts Form S-3 at the time of filing, and the Company subsequently becomes eligible to cause such Registration Statement to become effective; use Form S-3, the Company shall not file any file, as promptly as reasonably practicable, a new Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which on Form S-3 covering the Participating Shareholders or the underwriters, if any, shall reasonably object in light resale of the requirements Registrable Securities and replace the Registration Statement on Form S-1 with the new Registration Statement on Form S-3 upon the effectiveness of the Securities Act or any other applicable laws or regulations;new Registration Statement on Form S-3.
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the The Company shall make such reasonable changes thereto (including changes use its best efforts to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;:
(ci) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary or advisable to keep the Registration Statement continuously current and effective for the Registrable Securities held by the Purchaser for a period ending on the earlier of not less than ninety (90i) days; cause the Prospectus to date on which all Registrable Securities may be supplemented by any required Prospectus supplement, and as so supplemented to be filed sold pursuant to Rule 424 144 under the Securities Act; and comply Act or any successor rule (“Rule 144”) during any three-month period without the requirement for the Company to be in compliance with the provisions of current public information required under Rule 144(c)(1), or (ii) such time as all Registrable Securities have been sold pursuant to a registration statement or Rule 144. The Company shall notify the Securities Act with respect to Purchaser promptly upon the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition and each post-effective amendment thereto, being declared effective by the Participating Shareholders set forth SEC and advise the Purchaser that the form of Prospectus contained in such the Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filedthereto, andas the case may be, at the time of effectiveness meets the requirements of Section 10(a) of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act;
(ii) furnish to the Purchaser with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to Registrable Securities registered under the Registration Statement or such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses) filed with the SEC in conformance with the requirements of the Securities Act and other such documents as the Purchaser may reasonably request, in order to facilitate the public sale or for additional information, other disposition of all or any of the Registrable Securities by the Purchaser;
(iii) make any necessary blue sky filings;
(iv) pay the expenses incurred by the Company and the Purchaser in complying with Section 5, including, all registration and filing fees, FINRA fees, exchange listing fees, printing expenses, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding attorneys’ fees of the Purchaser and any and all underwriting discounts and selling commissions applicable to the sale of Registrable Securities by the Purchaser);
(v) advise the Purchaser, promptly after it shall receive notice or obtain knowledge of the issuance by the SEC of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceedings proceeding for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true ; and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as it will promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register prevent the issuance of any stop order or qualify, to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(vi) with a view to making available to the Purchaser the benefits of Rule 144 and any other rule or cooperate with regulation of the Participating Shareholders and SEC that may at any time permit the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Purchaser to sell Registrable Securities for offer to the public without registration, the Company covenants and sale under agrees to: (i) make and keep public information available, as such term is understood and defined in Rule 144, until the securities or blue sky laws earlier of (A) such jurisdictions date as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by qualify to be resold immediately pursuant to Rule 144 or any other rule of similar effect during any three-month period without the Registration Statement; provided that requirement for the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in compliance with the current public information required under Rule 144(c)(1) or (B) such denominations and registered in such names date as the managing underwriters may request at least two (2) Business Days prior to any sale all of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement shall have been resold pursuant to be registered with or approved by such other governmental agencies or authorities within the United States as Rule 144 (and may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, further resold without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Actrestriction); (ii) obtain opinions file with the SEC in a timely manner all reports and other documents required of counsel the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Purchaser upon request, as long as the Purchaser owns any Registrable Securities, (A) a written statement by the Company as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and updates thereof (which counsel and opinions (in form, scope and substanceC) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters information as may be reasonably requested by in order to avail the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters Purchaser of any rule or regulation of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, SEC that permits the same shall set forth in full the indemnification provisions and procedures selling of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securitieswithout registration. The Company may require understands that the Participating Shareholders to furnish to Purchaser disclaims being an underwriter, but acknowledges that a determination by the Company such information and documents regarding SEC that the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from Purchaser is deemed an underwriter does not relieve the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until obligations 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, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicehereunder.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp), Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act or an Underwritten Offering as provided in Section 4.1, Section 4.2 and Section 4.3, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five will (5A) days before filing, furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed filed, (including documents incorporated therein by reference), B) provide each such Selling Holder and their counsel the opportunity to enable object to any information pertaining to such Participating Shareholders Selling Holder or its plan of distribution that is contained in the registration statement (it being understood that each Selling Holder and the underwriters, if any, counsel to such Selling Holder will conduct their review such documents prior to the filing thereof, and the Company shall provide any comments promptly) and (C) make such reasonable any changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter Selling Holder or underwriters, if anytheir counsel with respect to such information;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements and “stickers” to such registration statement and the Registration Statement prospectus used in connection therewith and any Filings incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of (x) such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (y) (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of [***] after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of [***] after such registration statement becomes effective or (iii) in the case of a Shelf Registration Statement or supplement pursuant to Section 4.3, the Prospectuslast day of the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits or documents incorporated by reference therein), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use best efforts to cause such Registrable Securities to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on The Nasdaq Stock Market or the New York Stock Exchange;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder or underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission or any other Governmental Authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission or any other Governmental Authority of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at the existence of any time conflict between the information contained in any of Issuer Free Writing Prospectus and the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least [***], but not more than [***], beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Ordinary Shares or qualifyAmerican Depositary Shares; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders any Selling Holder and any underwriter and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such Selling Holder may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxv) cause appropriate officers of the Company to prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and at other meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its their reasonable best efforts to cause the Registrable Securities covered cooperate (as reasonably requested by the 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 Selling Holders and the underwriters) in the offering, if any, to consummate marketing or selling of the disposition of such Registrable Securities;
(lxvi) upon cause appropriate officers of the occurrence Company and representatives of the Company’s independent registered public accountants to participate in any event contemplated due diligence discussions reasonably requested by paragraph any Selling Holder or any underwriter;
(d)(vixvii) aboveif requested by any underwriter, prepare agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Equity Securities of the Company;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxix) enter into such agreements (including an underwriting agreement) cooperate and take all such other actions assist in connection therewith as Participating Shareholders or any filings required to be made with the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities FINRA and in such connection, whether or not an underwriting agreement the performance of any due diligence investigation by any underwriter that is entered into required to be undertaken in accordance with the rules and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating FINRA;
(xx) otherwise use reasonable best efforts to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters cooperate as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders Selling Holders and the underwritersunderwriters in the offering, if any, such letters to be in customary form and covering matters marketing or selling of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderRegistrable Securities;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxxi) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal,” Block Trade Offering or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of to complete or amend the information required by such registration statement.
(b) Without limiting any notice from the Company of the happening of any foregoing, in the event of that the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition offering of Registrable Securities until such Shareholder's receipt of the copies of the supplemented is to be made by or amended Prospectus contemplated by Section 5(l)through an underwriter, or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such noticeissuers. No Selling Holder shall be required to make any representations, warranties, indemnities or agreements with the Company or the underwriters other than the representations, warranties, indemnities and agreements regarding such Selling Holder, its ownership of the Registrable Securities being registered on its behalf, its intended method of distribution and any other representations, warranties, indemnities and agreements required by law.
(c) In connection with any offering of Registrable Securities registered pursuant to this Agreement, the time periods mentioned in Section 5(c) hereof Company shall be extended by furnish to the number of days during underwriter, if any (or, if no underwriter, the period from Selling Holder), to the extent permitted under applicable law and including the date subject to any requirements of the giving of such notice pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.Depositary, unlegended certificates rep
Appears in 2 contracts
Sources: Shareholders’ Rights Agreement (Fortress Investment Group LLC), Shareholders’ Rights Agreement (Fortress Investment Group LLC)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 3.1, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, 3.2 and pursuant thereto 3.3 the Company shall as expeditiously as reasonably possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveand remain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereofreview of such counsel, and the Company shall make such review to be conducted with reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anypromptness;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 3.3, the expiration of one year after such registration statement becomes effective;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv4) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly soon as practicable after filing reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders sellers and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law) representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such sellers may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to and keep available and make the statements therein not misleading;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel available to the Company, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory ’s transfer agent prior to the managing underwriterseffectiveness of such registration statement a supply of such certificates; and
(xv) addressed have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to Participating Shareholders and the underwriters, obtain ratings for any Registrable Securities (if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters they are eligible to be in customary form rated) and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules cooperate as reasonably requested by the Selling Holders and regulations the underwriters in the offering, marketing or selling of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold, in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof3.6(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE"3.6(a)(ix) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (Company, at the Company's ’s expense) , all copies, other than permanent file copies copies, then in such Shareholder's possession, Selling Holder’s possession of the Prospectus covering such Registrable Securities prospectus current at the time of receipt of such noticenotice relating to such Registrable Securities. If In the event the Company shall give such notice, the time periods mentioned in Section 5(c) hereof any applicable 60 day or one year period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of such a notice pursuant to regarding the happening of an event of the kind described in Section 5(d)(vi3.6(a)(ix) to and including the date when all such Participating Shareholder Selling Holders shall have received the copies of the receive such a supplemented or amended prospectus contemplated by Section 5(l) or and such prospectus shall have been filed with the AdviceCommission.
Appears in 2 contracts
Sources: Investor Rights Agreement (GateHouse Media, Inc.), Investor Rights Agreement (GateHouse Media, Inc.)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities are to be registered pursuant to this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit will effect the registration and the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof. Pursuant thereto, and pursuant thereto the Company shall will, as expeditiously as possiblepossible and in any event in accordance with the following procedures:
(a) in accordance with respect to a request to file a Registration Statement covering Registrable the Securities made pursuant to Article 3Act and all applicable rules and regulations promulgated thereunder, use its reasonable best efforts to (i) prepare and file with the SEC not later than sixty within (60x) with respect to Long-Form Registrations, forty-five (45) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request for registration by an eligible holder of Registrable Securities and (y) with respect to Short-Form Registrations, thirty (30) days of such request for registration by an eligible holder of Registrable Securities, a registration statement, and promptly thereafter all amendments and supplements thereto and related prospectuses, with respect to such Registrable Securities; provided, that, no later than the date that is six (6) months following the Closing date, the Company shall file (x) if the Company is engaged in negotiations in anticipation of its participation in a material mergerWKSI, acquisition an Automatic Shelf Registration Statement or other form of business combination or, (y) if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participatingWKSI, or electing to participatea shelf registration statement on Form S-3, in such registration of each case registering the Equityholders’ Registrable Securities and (the "PARTICIPATING SHAREHOLDER"ii) a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveeffective as soon as reasonably practicable thereafter; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersprovided, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement registration statement or Prospectus prospectus pursuant to this Agreement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)or any Free Writing Prospectuses related thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and counsel of the underwriters, if any, Equityholders in such offering copies of all such documents in substantially the form proposed to be filed (including which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior shall be subject to the filing thereofreview of such counsel, and the Company shall make give the Equityholders and their counsel a reasonable opportunity to comment on such reasonable changes thereto documents and keep such Equityholders reasonably informed as to the registration process (including changes to, or and the filing Equityholders of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested the Registrable Securities covered by such Participating Shareholders registration statement shall have the right to request that the Company modify any information contained in such registration statement, amendment or supplement thereto pertaining to the Equityholders and the managing underwriter or underwriters, if anyCompany will use its commercially reasonable efforts comply with such request);
(c) subject to paragraph (b) above, promptly notify the Equityholders of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a the lesser of (i) one hundred eighty (180) days and (ii) such shorter period of not less than ninety (90) days; cause which will terminate when all Registrable Securities covered by the Prospectus to be supplemented by any required Prospectus supplementregistration statement have been sold, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act (or comparable applicable foreign securities laws) with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods of disposition by the Participating Shareholders sellers thereof set forth in such registration statement; provided, that with respect to any shelf registration statement covering Registrable Securities, if the Company is not eligible to use an Automatic Shelf Registration Statement or supplement at the time of filing then the Company shall keep such registration statement continuously effective under the Securities Act in order to permit the Prospectusprospectus forming a part thereof to be useable by the Equityholders (subject to customary public company blackout requirements) until the earliest of (x) the date as of which all Registrable Securities have been sold and (y) such earlier date agreed to in writing by the Company and the Designated Investors;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any the managing underwriters (if any) or the holders of a majority of the then outstanding Registrable Securities included in such Person) confirm such advice registration statement, promptly include in writing, (i) when the Prospectus or any Prospectus a prospectus supplement or post-effective amendment has been filed, and, with respect to such information as the Registration Statement managing underwriters (if any) or any post-effective amendment, when the same has become effective, (ii) of any such holders may reasonably request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make permit the statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal intended method of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies distribution of such document to counsel to the Participating Shareholders securities and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy make all required filings of the Registration Statement and any such prospectus supplement or such post-effective amendment theretoas soon as practicable after the Company has received such request; provided, including financial statements and schedulesthat the Company shall not be required to take any actions under this Section 5(c) that are not, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number in the opinion of conformed copies of all such documentscounsel for the Company, in compliance with applicable law;
(hd) deliver furnish without charge to the Participating Shareholders and the underwriters, if any, as many Equityholders such number of copies of such registration statement, each amendment and supplement thereto, the Prospectus prospectus included in such registration statement (including each preliminary prospectus), each Free Writing Prospectus (or similar prospectus available under comparable foreign securities laws) and any amendment or supplement thereto such other documents as such Persons the Equityholders may reasonably request; request (in each case including all exhibits thereto and documents incorporated by reference therein) in order to facilitate the disposition of the Registrable Securities owned by the Equityholders, and the Company hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the Participating Shareholders selling holders of Registrable Securities and the underwritersunderwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any amendment or supplement thereto;
(e) notify the Equityholders, (i) prior to promptly after it receives notice thereof, of the date on which the Registration Statement is declared effective, use its reasonable best efforts and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to register or qualify, or cooperate with the Participating Shareholders any prospectus relating to a registration statement has been filed and the underwriters, if any, and their respective counsel in connection with the when any registration or qualification of, such Registrable Securities for offer and sale has become effective under the a state securities or blue sky laws law or any exemption thereunder has been obtained, (ii) promptly after receipt thereof, of any request by the SEC or any state securities authority for the amendment or supplementing of such jurisdictions as registration statement or prospectus or for additional information, (iii) promptly after it receives notice thereof, of the issuance by the SEC or any seller state securities regulator of any stop order suspending such registration statement or underwriter reasonably requests in writing and do the initiation of any and all other acts or things necessary or advisable proceedings for that purpose, (iv) promptly after receipt thereof of any notification with respect to enable the disposition in such jurisdictions suspension of qualification of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business for sale in any jurisdiction where it or the initiation of any proceeding for such purpose, and (v) promptly during any time when a prospectus relating thereto is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable be delivered under the Securities Act in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares event of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) abovethe result of which is that it has actual knowledge that the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, at the request of Equityholders holding a majority of the Registrable Securities remaining unsold under such registration statement during the time that a prospectus is required to be delivered to purchasers of Registrable Securities, the Company will promptly prepare a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (and the period of effectiveness of such registration statement provided for in Section 5(b) shall be extended by the number of days from and including the date such notice is given to the date such amended or supplemented prospectus has been delivered under this Section 5(e));
(f) prepare and file promptly with the SEC, and notify the Equityholders prior to the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, in case any of such holders of Registrable Securities or any underwriter for any such holders is required to deliver a prospectus at a time when the prospectus then in circulation is not in compliance with the Securities Act or the rules and regulations promulgated thereunder (or comparable applicable foreign securities laws), the Company shall prepare promptly upon request of any such holder or underwriter such amendments or supplements to such registration statement and prospectus as may be necessary in order for such prospectus to comply with the requirements of the Securities Act and such rules and regulations promulgated thereunder (or comparable applicable foreign securities laws);
(g) take all reasonable action to ensure that any Free Writing Prospectus utilized in connection with any registration covered by Section 2 or Section 3 complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(mh) use its reasonable best efforts to cause all such Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market a national or international securities exchange or trading system and each other securities exchange and trading system (if any) on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anytraded;
(ni) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and provide a CUSIP number for all such Registrable Securities, in each case, not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form, which agreements include customary limitations on the liability of the holders of Registrable Securities);
(k) use its commercially reasonable efforts to prevent the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such connectionregistration statement for sale in any jurisdiction, whether and in the event of the issuance of any such stop order or not an underwriting agreement is entered into other such order the Company shall advise the Equityholders of such stop order or other such order promptly after it shall receive notice or obtain knowledge thereof and whether or not shall use its commercially reasonable efforts to promptly obtain the registration is an underwritten registration withdrawal of such order;
(il) make such representations and warranties use its commercially reasonable efforts to obtain a “cold comfort” letter from the Participating Shareholders and Company’s independent public accountants in customary form, addressed to each of the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requestedapplicable, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "by “cold comfort" ” letters by as the managing underwriters in connection with primary reasonably request;
(m) provide a legal opinion of the Company’s outside counsel addressed to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten offerings; (iv) if an public offering, dated the date of the closing under the underwriting agreement is entered intoagreement), the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form, and reasonably acceptable to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, and covering such matters of the type customarily covered by legal opinions of such nature;
(n) cooperate and assist in any filings required to evidence compliance be made with clause FINRA;
(io) above and with any customary conditions contained in the underwriting agreement register or other agreement entered into by the Company. The above shall be done at each closing qualify such Registrable Securities under such underwriting other securities or similar agreement “blue sky” laws of such jurisdictions as any seller or as underwriter reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the extent disposition in such jurisdictions of the Registrable Securities owned by such seller (provided, that the Company will not be required thereunderto (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (y) consent to general service of process in any such jurisdiction, or (z) subject it to taxation in any such jurisdiction);
(p) make up to three (3) appropriate personnel of the Company reasonably available for inspection during normal business hours by to assist the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statementunderwriters with respect to, and any attorneyaccompany the underwriters on the so-called “road show”, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statementthe marketing efforts for, and the distribution and sale of Registrable Securities pursuant to any Demand Registration at times that may be mutually and reasonably agreed upon; provided provided, that any records, information or documents that are designated by the personnel of the Company shall not be required to participate in writing as confidential shall be kept confidential by such Persons“road shows” (including presentations and any other marketing or selling events) in excess of five (5) Business Days per Demand Registration;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of at any time the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”), no later than forty-five use its commercially reasonable efforts to remain a WKSI (45and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) days after so long as the end of any twelve Equityholders hold Registrable Securities;
(12)-month period (ir) commencing if an Automatic Shelf Registration Statement covering Registrable Securities has been outstanding for at least three years, at the end of any fiscal quarter in which the third year, file a new Automatic Shelf Registration Statement covering all of the Registrable Securities are sold to underwriters (and keep such new Automatic Shelf Registration Effective in a firm or best efforts underwriting offering, and (ii) beginning accordance with the first month of terms hereof);
(s) if at any time when the Company's first fiscal quarter commencing after Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI and an Automatic Shelf Registration Statement covering Registrable Securities is then outstanding, file a shelf registration statement on Form S-3 and keep such registration statement effective date of during the Registration Statement, which statements shall cover said twelve (12)-month periodsperiod as required in the proviso to Section 5(b); and
(rt) take such other reasonable steps that are actions and deliver such other documents and instruments as may be reasonably necessary or advisable to permit facilitate the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information registration and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus as contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicehereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (DigitalBridge Group, Inc.), Purchase and Sale Agreement (DigitalBridge Group, Inc.)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In connection with the Company's registration obligations pursuant to this AgreementSections 2, 3 and 3A hereof, the Company shall promptly take all will use its reasonable best efforts to effect such actions as may be necessary or desirable registration to permit the sale of such the Registrable Securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall will as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities registrations made pursuant to Article 3Section 2 only, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory with respect to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale of the such Registrable Securities 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; effective as soon as practicable, and, upon the Company shall not file request of any Holder of Registrable Securities to be sold under such Registration Statement pursuant (a "Rights Holder"), keep such Registration Statement effective for up to Article 3 or any amendment thereto or any Prospectus or any supplement thereto ninety (including such documents incorporated by reference90) to which the Participating Shareholders or the underwritersdays, if anyprovided that, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a any Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder the Rights Holders and the underwriters, if anytheir counsel, copies of all such documents in substantially the form proposed to be filed at least three (including documents incorporated therein 3) days prior thereto, provided, further, that the Company will not name or otherwise provide any information with respect to any Rights Holder in any Registration Statement or Prospectus without the express written consent of such Rights Holder, which consent shall not be unreasonably withheld, unless required to do so by reference), to enable such Participating Shareholders the Securities Act and the underwriters, if any, to review such documents prior to the filing thereof, rules and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyregulations thereunder;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act and the rules and regulations thereunder 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 Participating Shareholders set forth in such Registration Statement or supplement to the ProspectusStatement;
(dc) promptly notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, Rights Holders (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, purpose and (viv) of the occurrence 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 so that such documents will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(ed) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momenttime;
(e) if requested by the Approved Underwriter or Rights Holder, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the Approved Underwriter and such Rights Holder agree should be included therein as required by applicable law and (ii) make all required filings of such Prospectus supplement or such post-effective amendment promptly after the Company has received notification of the matters to be incorporated in such Prospectus supplement or such post-effective amendment; provided, however, that the Company shall not be required to take any of the actions of this Section 6(e) which it determines are not, on the advice of counsel for the Company, required under applicable law;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document furnish to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriterRights Holder, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) and a deliver to the Rights Holders, without charge, such reasonable number of conformed copies of all the Registration Statement (and any post-effective amendment thereto) and such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many number of copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto (and any documents incorporated by reference therein) as such Persons the Rights Holders may reasonably request, all in full conformity with the Securities Act; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, Rights Holders in connection with the offering offer and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(ih) prior to the date on which the any offering of Registrable Securities covered by a Registration Statement is declared effectiveStatement, use its reasonable best efforts to register or qualify, qualify or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel Rights Holders in connection with the registration or qualification of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller Rights Holder reasonably requests, and use its reasonable best efforts to keep each such registration or underwriter reasonably requests in writing qualification effective, including through new filings, or amendments or renewals, during the period such Registration Statement is required to be kept effective pursuant to the terms of this Agreement; and do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Securities covered reasonably requested by the Registration Statement; such Rights Holder, provided that under no circumstances shall the Company will not be required in connection therewith or as a condition thereof to qualify generally to do business in any jurisdiction where it is not then so qualified business, to become subject to taxation or to take any action which would subject it file a general consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up states or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdictions;
(ji) cooperate with the Participating Shareholders Rights Holders and the managing underwriters, if any, underwriter or underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold sold, free of any and not bearing any all restrictive legends; and enable , such Registrable Securities certificates to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with underwriter or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate or the disposition of such Registrable SecuritiesRights Holders may request;
(lj) upon the occurrence of any event contemplated by paragraph (d)(viSection 6(c)(v) above, prepare a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(mk) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) 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, the holders of the Company's outstanding securities earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month 12) month period (or ninety (90) days, if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting underwritten offering, and or, if not sold to underwriters in such an offering, (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods12) month period;
(l) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by each Registration Statement from and after a date not later than the effective date of such Registration Statement;
(m) use its reasonable best efforts to cause all Registrable Securities covered by each Registration Statement to be listed, subject to notice of issuance, prior to the date of the first sale of such Registrable Securities pursuant to such Registration Statement, on each securities exchange on which the Shares issued by the Company are then listed, and admitted to trading on the Nasdaq Stock Market or other national exchange, if the Shares are then admitted to trading on the Nasdaq Stock Market or such national exchange;
(n) enter into such agreements (including underwriting agreements in customary form containing, among other things, reasonable and customary indemnities) and take such other actions as the Rights Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities; and
(ro) take furnish, at the request of the Rights Holders, on the date that Registrable Securities are delivered to an underwriter for sale in connection with an underwritten registration, or, in connection with any other registration, on the date that the Registration Statement with respect to such registration becomes effective, (i) an opinion, dated such date, of the counsel representing the Company for the purpose of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Rights Holders, (ii) a letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Rights Holders, subject to such Rights Holders' provision of information reasonably requested by such independent certified public accountants to comply with the rules governing delivery of such letters, and (iii) cause the underwriting agreement to contain indemnification provisions and procedures no less favorable than those set forth in Section 8 hereof (or such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish provisions and procedures acceptable to the Company Rights Holders) with respect to all parties to be indemnified pursuant to such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writingSection. Each Shareholder Rights Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi6(c)(v) hereof, such Shareholder Rights Holder will forthwith discontinue disposition of Registrable Securities under the Prospectus related to the applicable Registration Statement until such ShareholderRights Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l)6(j) hereof, or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies . It shall be a condition precedent to the obligations of the Company to take any additional or supplemental filings which are incorporated by reference in action pursuant to this Section 6 with respect to the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver Registrable Securities of a Rights Holder that such Rights Holder shall furnish to the Company (at such information regarding itself and the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, Registrable Securities held by it as shall be required by the Securities Act to effect the registration of the Prospectus covering such Rights Holder's Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) hereof shall be extended and as typically provided by the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicesimilarly situated selling stockholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Goldman Sachs Group Inc), Registration Rights Agreement (Orion Power Holdings Inc)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect or cause the registration of any Registrable Securities be registered pursuant to under the Securities Act as provided in this Agreement, the Company shall promptly take shall, as expeditiously as possible (but, in any event (i) if the Company is not then eligible to use a shelf registration statement, within 45 days or (ii) if the Company is then eligible to use a shelf registration statement, within 30 days, after a Demand Registration Request in the case of Section 2.4(a) below), in connection with the Registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(a) prepare and file all such actions as may be necessary or desirable to permit filings with the sale SEC and FINRA required for the consummation of the offering, including preparing and filing with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company which registration form (i) shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended selected by the Company for up to an additional sixty and (60ii) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participateshall, in such registration the case of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basisshelf registration, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in accordance all material respects with the intended method or methods requirements of distribution thereofthe applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective; effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur (A) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (B) a period of 90 days in the case of an underwritten offering effected pursuant to a registration statement other than a shelf registration statement and a period of three years in the case of a shelf registration statement (provided, however, that as far in advance as reasonably practicable before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Majority Participating Holders) and to one counsel for the Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (provided that the Company shall be under no obligation to make any changes suggested by the Holders), and the Company shall not file any Registration Statement pursuant to Article 3 registration statement or amendment thereto, any amendment prospectus or supplement thereto or any Prospectus or any supplement free writing prospectus related thereto (including such documents incorporated by reference) to which the Participating Shareholders Initiating Holders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsobject);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith and such free writing prospectuses and Exchange Act reports as may be necessary to keep the Registration Statement such registration statement continuously effective for a the period of not less than ninety (90set forth in Section 2.4(a) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period registration statement in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement (and, in connection with any shelf registration statement, file one or supplement more prospectus supplements pursuant to Rule 424 under the ProspectusSecurities Act covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(c) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering;
(d) notify the furnish, without charge, to each Participating Shareholders Holder and the managing underwriterseach underwriter, if any, promptlyof the securities covered by such registration statement such number of 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 any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (if requested by any the Company hereby consenting to the use in accordance with all applicable laws of each such Person) confirm such advice in writing, registration statement (i) when the Prospectus or any Prospectus supplement amendment 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, (iithereto) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits such prospectus (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each or preliminary prospectus) and any amendment prospectus or supplement thereto as thereto) or free writing prospectus by each such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus such registration statement or any amendment or supplement theretoprospectus);
(ie) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale covered by such registration statement under the such other securities or state “blue sky sky” laws of such jurisdictions as any seller sellers of Registrable Securities or underwriter any managing underwriter, if any, shall reasonably requests request in writing writing, and do any and all other acts or and things which may be reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified sellers or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the 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 underwritersunderwriter, if any, to consummate the disposition of the Registrable Securities in such Registrable Securitiesjurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (e), be required 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;
(lf) upon promptly notify each Participating Holder and each managing underwriter, if any: (i) when the occurrence of registration statement, any event contemplated by paragraph (d)(vi) abovepre-effective amendment, prepare a the prospectus or any prospectus supplement or related thereto, any post-effective Amendment amendment to the Registration Statement registration statement or any free writing prospectus has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the Prospectus prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference reference, any free writing prospectus or file the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other required document similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(mg) use comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its reasonable best efforts to security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within 45 days, or 90 days if it is a fiscal year, after the end of such 12 month period described hereafter), an earnings statement (which need not be audited) covering the period of at least 12 consecutive months beginning with the first day of the Company’s first fiscal 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;
(h) (i) (A) cause all such Registrable Securities covered by the Registration Statement such registration statement to be listed on the Nasdaq National Market and each other principal securities exchange on which similar securities issued by the Company are then listed (if requested any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by Shareholder or the Company as the issuer of such Registrable Securities in order to facilitate the managing underwritersunderwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, if anyand (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(ni) cause its senior management, officers and employees to participate in, and to otherwise facilitate and cooperate with the preparation of the registration statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions, due diligence sessions and rating agency presentations) taking into account the Company’s reasonable business needs;
(j) provide and cause to be maintained a transfer agent and registrar for all such Registrable SecuritiesSecurities covered by such registration statement not later than the effective date of such registration statement;
(ok) enter into such customary agreements (including including, if applicable, an underwriting agreement) and take all such other actions in connection therewith as the Majority Participating Shareholders Holders or the managing underwriters, if any, underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such connection, whether or not an underwriting agreement is entered into and whether or not may, at their option, require that the registration is an underwritten registration Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(l) use its reasonable best efforts (i) make to obtain an opinion from the Company’s counsel, including local and/or regulatory counsel, and a comfort letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such representations registration statement, in each case, in customary form and warranties covering such matters as are customarily covered by such opinions and comfort letters (including, in the case of such comfort letter, events subsequent to the Participating Shareholders date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requestedMajority Participating Holders, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel furnish to each Holder participating in the Company, offering and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriterseach underwriter, if any, covering the matters customary in underwritten primary offerings a copy of such opinion and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject letter addressed to such accountants' customary procedures, addressed underwriter;
(m) deliver promptly to the counsel for each Participating Shareholders Holder and the underwritersto each managing underwriter, if any, such letters copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to be in customary form and covering matters of discussions with the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 SEC or its staff with respect to all parties to be indemnified pursuant to said Section; and (v) the registration statement, and, upon receipt of such confidentiality agreements as the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwritersreasonably request, if any, 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 thereunder;
(p) make reasonably available for inspection during normal business hours by the counsel for each Participating ShareholdersHolder, by counsel for any underwriter underwriter, participating in any disposition to be effected pursuant to such registration statement, statement and by any attorney, accountant or other agent retained by the any Participating Shareholders Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's ’s officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such counsel for a Participating Holder, counsel for an underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qn) otherwise use its reasonable best efforts to comply with all applicable rules and regulations obtain the prompt withdrawal of any order suspending the effectiveness of the SECregistration statement, and make generally available to its security holders, earnings statements satisfying or the provisions prompt lifting of Section 11(a) any suspension of the qualification of any of the Registrable Securities Actfor sale in any jurisdiction, no in each case, as promptly as reasonably practicable;
(o) provide a CUSIP number for all Registrable Securities, not later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statementregistration statement;
(p) use its best efforts to make available its senior management, employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(q) promptly prior to the filing of any document which statements shall cover said twelve is to be incorporated by reference into the registration statement or the prospectus (12)-month periods; andafter the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or underwriters may reasonably request;
(r) take furnish to counsel for each Participating Holder and to each managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other reasonable steps that are necessary or advisable to permit prospectus filed under Rule 424 under the sale of such Registrable Securities. The Company may require Securities Act and all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith;
(s) cooperate with the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders Holders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, andmanaging underwriter, if so directed by any, to facilitate the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, timely preparation and delivery of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.ce
Appears in 2 contracts
Sources: Registration Rights Agreement (Signify Health, Inc.), Registration Rights Agreement (Signify Health, Inc.)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 4.1, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof4.2 and 4.3, and pursuant thereto the Company shall as expeditiously as reasonably possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveand remain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereofreview of such counsel, and the Company shall make such review to be conducted with reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anypromptness;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the expiration of one year after such registration statement becomes effective;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv4) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly soon as practicable after filing reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Shareholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders sellers and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such sellers may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to and keep available and make the statements therein not misleading;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel available to the Company, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory ’s transfer agent prior to the managing underwriterseffectiveness of such registration statement a supply of such certificates as necessary or appropriate; and
(xv) addressed have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to Participating Shareholders and the underwriters, obtain ratings for any Registrable Securities (if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters they are eligible to be in customary form rated) and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules cooperate as reasonably requested by the Selling Holders and regulations the underwriters in the offering, marketing or selling of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof4.6(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE"4.6(a)(ix) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (Company, at the Company's ’s expense) , all copies, other than permanent file copies copies, then in such Shareholder's possession, Selling Holder’s possession of the Prospectus covering such Registrable Securities prospectus current at the time of receipt of such noticenotice relating to such Registrable Securities. If In the event the Company shall give such notice, the time periods mentioned in Section 5(c) hereof any applicable 60 day or one year period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of such a notice pursuant to regarding the happening of an event of the kind described in Section 5(d)(vi4.6(a)(ix) to and including the date when all such Participating Shareholder Selling Holders shall have received the copies of the receive such a supplemented or amended prospectus contemplated by Section 5(l) or and such prospectus shall have been filed with the AdviceCommission.
Appears in 2 contracts
Sources: Shareholder Agreement (Seacastle Inc.), Shareholder Agreement (Seacastle Inc.)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 4.1, 4.2 and 4.3, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereofreview of such counsel, and the Company shall make such review to be conducted with reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anypromptness;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(1) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(iv4) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(o5) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders sellers and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such sellers may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cause the Registrable Securities covered cooperate as reasonably requested by the Registration Statement to be registered with Selling Holders and the underwriters in the offering, marketing or approved by such other governmental agencies or authorities within selling of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lxvi) upon if requested by any Selling Holders or any underwriter, promptly incorporate in the occurrence of registration statement or any event contemplated by paragraph (d)(vi) aboveprospectus, prepare pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxvii) enter into such agreements (including an underwriting agreement) cooperate and take all such other actions assist in connection therewith as Participating Shareholders or any filings required to be made with the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities FINRA and in such connection, whether or not an underwriting agreement the performance of any due diligence investigation by any underwriter that is entered into required to be undertaken in accordance with the rules and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities ActFINRA; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;and
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxviii) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof4.6(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE"4.6(a)(ix) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (Company, at the Company's ’s expense) , all copies, other than permanent file copies copies, then in such Shareholder's possession, Selling Holder’s possession of the Prospectus covering such Registrable Securities prospectus current at the time of receipt of such noticenotice relating to such Registrable Securities. If In the event the Company shall give such notice, the time periods mentioned in Section 5(c) hereof any applicable 60 day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of such a notice pursuant to regarding the happening of an event of the kind described in Section 5(d)(vi4.6(a)(ix) to and including the date when all such Participating Shareholder Selling Holders shall have received the copies of the receive such a supplemented or amended prospectus contemplated by Section 5(l) or and such prospectus shall have been filed with the AdviceCommission.
Appears in 2 contracts
Sources: Shareholder Agreements (Missouri & Northern Arkansas Railroad Co), Stockholders Agreement (Railamerica Inc /De)
Registration Procedures. Whenever If the Company files a Shareholder has requested that any Registrable Securities be registered registration statement pursuant to this AgreementSection 2(a), 2(b) or 2(c), the Company following provisions shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleapply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf Registration, as the case may be, the Company shall qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) If the Company elects to file an Exchange Registration Statement pursuant to Section 2(b) above, in connection with the Company’s obligations with respect to a request to file a Registration Statement covering Registrable the registration of Exchange Securities made pursuant to Article 3as contemplated by Section 2(b) (the “Exchange Registration”), the Company shall:
(i) use its commercially reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (Commission an Exchange Registration Statement on any form which sixty (60) day period may be extended utilized by the Company for up and which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to an additional sixty be effected as contemplated by Section 2(b), and use its commercially reasonable efforts to cause such Exchange Registration Statement to become effective on or prior to 330 days after the Issue Date;
(60ii) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file with the Commission such amendments and supplements to such Exchange Registration Statement and the Company furnishes prospectus included therein as may be necessary to effect and maintain the effectiveness of such Exchange Registration Statement for the periods and purposes contemplated in Section 2(b) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Exchange Registration Statement, and promptly provide each Shareholder participating, broker-dealer holding Exchange Securities with such number of copies of the prospectus included therein (as then amended or electing to participatesupplemented), in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that conformity in the good faith opinion of the board of directors of the Company such registration would interfere all material respects with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsand the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of Exchange Securities;
(biii) before filing a Registration Statement promptly notify each broker-dealer that has requested or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case received copies of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all prospectus included in such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereofregistration statement, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (iA) when such Exchange Registration Statement or the Prospectus prospectus included therein or any Prospectus prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to the such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (iiB) of any request by the SEC Commission for amendments or supplements to the such Exchange Registration Statement or the Prospectus prospectus or for additional information, (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the such Exchange Registration Statement or the initiation of any proceedings for that purpose, (ivD) if of the receipt by the Company of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, or (E) at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(iv) in the event that the Company would be required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-dealers holding Exchange Securities, use its commercially reasonable efforts to prepare and furnish as soon as practicable to each such broker-dealer a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(v) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;
(vi) use its commercially reasonable efforts to (A) register or qualify the Exchange Securities under the state securities laws or blue sky laws of such U.S. jurisdictions as any participating holder of the Registrable Securities reasonably requests in writing no later than the commencement of the Exchange Offer, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions; provided, however, that the Company shall not be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(c)(vi), (2) consent to general service of process in any such jurisdiction or (3) make any changes to its certificate of incorporation, by-laws or other organizational document, or any agreement between it and any of its equityholders;
(vii) provide a CUSIP number for all Exchange Securities, not later than the representations or warranties consummation of the Exchange Offer; and
(viii) comply in all material respects with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but no later than eighteen months after the effective date of such Exchange Registration Statement, an earning statement of the Company contemplated and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 thereunder).
(d) In connection with the Company’s obligations with respect to any Shelf Registration, the Company shall:
(i) use its commercially reasonable efforts to prepare and file with the Commission, as promptly as reasonably practicable, a Shelf Registration Statement on any form which may be utilized by paragraph the Company and which shall register all of the Registrable Securities (oor in the case of a Shelf Registration Statement filed pursuant to Section 2(c)(iii), the Registrable Securities held by the Holders) below cease for resale by the holders thereof in accordance with such method or methods of disposition as may be specified in the applicable Notice and Questionnaire by such of the holders as, from time to time, may be Electing Holders and use its commercially reasonable efforts to cause such Shelf Registration Statement to become effective within the time periods specified in Section 2(a) or (c), as applicable;
(ii) not less than 15 calendar days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be true named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and correctno holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Company by the deadline for response set forth therein; provided, however, holders of Registrable Securities shall have at least 13 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided that the Company shall not be required to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities until such holder has returned a completed and signed Notice and Questionnaire to the Company;
(iv) as soon as reasonably practicable prepare and file with the Commission such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(a) or 2(c) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment as soon as practicable following its filing with the Commission; provided that, notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate an Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer;
(v) comply in all material respects with the provisions of the Securities Act with respect to the disposition of all of the Registrable Securities covered by such Shelf Registration Statement in accordance with the intended methods of disposition by the Electing Holders provided for in such Shelf Registration Statement;
(vi) for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(a) or 2(c), as applicable, make reasonably available at reasonable times at the Company’s principal place of business or such other reasonable place for inspection by a representative of, and not more than one counsel acting for, Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (the “Majority Electing Holders”) and any underwriter participating in the distribution of the Registrable Securities being sold (including any person who may be deemed an underwriter within the meaning of Section 2(a)(ii) of the Securities Act) such relevant financial and other pertinent information and books and records of the Company, and use its commercially reasonable efforts to cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing investigation and information gathering shall be coordinated on behalf of all such parties by one counsel designated by and on behalf of all such parties and provided, further, that each such party shall be required (pursuant to an agreement in form and substance reasonably satisfactory to the Company) to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such registration statement or otherwise except as a result of a breach of this or any other obligation of confidentiality to the Company known to such party), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter or any such court, agency or body requests such information from such person in connection with any examination, review or investigation (subject to the requirements of such order, subpoena or request, and only after such person shall have given the Company prompt prior written notice of such requirement so that the Company, at its expense, may undertake appropriate action to prevent disclosure of such information or records) or such disclosure is necessary in the opinion of counsel to establish a reasonable investigation within the meaning of Section 11 of the Securities Act in connection with any such subpoena, order, examination, review or investigation, or (C) such information is required to be set forth in such Shelf Registration Statement or the prospectus included therein or in an amendment to such Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the Commission and does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(vii) promptly notify each of the Electing Holders and any managing underwriter thereof and confirm such advice in writing, (vA) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment or related Issuer Free Writing Prospectus, has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or related Issuer Free Writing Prospectus, or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposepurpose or (E) if at any time when a prospectus is required to be delivered under the Securities Act, and (vi) of the occurrence of any event which makes any statement made in the that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the Prospectus applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(eviii) make every use its commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement such registration statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documentsthereto at the earliest practicable date;
(hix) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and requested by any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or managing underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the 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 underwritersMajority Electing Holders, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare promptly incorporate in a prospectus supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other amendment such information as is 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available as such managing underwriter or such Majority Electing Holders shall specify should be included therein relating to its security holders, earnings statements satisfying the provisions terms of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish , including information with respect to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.princ
Appears in 2 contracts
Sources: Exchange and Registration Rights Agreement (Music123, Inc.), Exchange and Registration Rights Agreement (Music123, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect or cause the registration of any Registrable Securities be registered pursuant to under the Securities Act as provided in this Agreement, the Company shall promptly take all such actions shall, as may be necessary or desirable to permit expeditiously as possible (but, in any event, within 60 days after a Demand Registration Request in the sale case of Section 2.5(a) below), in connection with the Registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereofthereof (including, and pursuant thereto the Company without limitation, a Partner Distribution), which registration form (i) shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended selected by the Company for up to an additional sixty and (60ii) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participateshall, in such registration the case of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basisshelf registration, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in accordance all material respects with the intended method or methods requirements of distribution thereofthe applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective; effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur (i) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (ii) a period of 90 days in the case of an underwritten offering effected pursuant to a registration statement other than a shelf registration statement and a period of three years in the case of a shelf registration statement (provided, however, that before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Majority Participating Holders) and to one counsel for the Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (provided that the Company shall be under no obligation to make any changes suggested by the Holders), and the Company shall not file any Registration Statement pursuant to Article 3 registration statement or amendment thereto, any amendment prospectus or supplement thereto or any Prospectus or any supplement free writing prospectus related thereto (including such documents incorporated by reference) to which the Majority Participating Shareholders Holders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsobject);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement continuously effective for a the period of not less than ninety (90set forth in Section 2.5(a) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period registration statement in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement (and, in connection with any shelf registration statement, file one or supplement more prospectus supplements covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(c) in the Prospectusevent of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering;
(d) notify the furnish, without charge, to each Participating Shareholders Holder and the managing underwriterseach underwriter, if any, promptlyof the securities covered by such registration statement such number of 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 any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (if requested by any the Company hereby consenting to the use in accordance with all applicable law of each such Person) confirm such advice in writing, registration statement (i) when the Prospectus or any Prospectus supplement amendment 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, (iithereto) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits such prospectus (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each or preliminary prospectus) and any amendment prospectus or supplement thereto as thereto) or free writing prospectus by each such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus such registration statement or any amendment or supplement theretoprospectus);
(ie) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale covered by such registration statement under the such other securities or state “blue sky sky” laws of such jurisdictions as any seller sellers of Registrable Securities or underwriter any managing underwriter, if any, shall reasonably requests request in writing writing, and do any and all other acts or and things which may be reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified sellers or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the 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 underwritersunderwriter, if any, to consummate the disposition of the Registrable Securities in such Registrable Securitiesjurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (e), be required 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;
(lf) upon promptly notify each Participating Holder and each managing underwriter, if any: (i) when the occurrence of registration statement, any event contemplated by paragraph (d)(vi) abovepre-effective amendment, prepare a the prospectus or any prospectus supplement or related thereto, any post-effective Amendment amendment to the Registration Statement registration statement or any free writing prospectus has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the Prospectus prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference reference, any free writing prospectus or file the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other required document similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(mg) use comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its reasonable best efforts to security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within 45 days, or 90 days if it is a fiscal year, after the end of such 12 month period described hereafter), an earnings statement (which need not be audited) covering the period of at least 12 consecutive months beginning with the first day of the Company’s first fiscal 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;
(h) (i) (A) cause all such Registrable Securities covered by the Registration Statement such registration statement to be listed on the Nasdaq National Market and each other principal securities exchange on which similar securities issued by the Company are then listed (if requested any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by Shareholder or the Company as the issuer of such Registrable Securities in order to facilitate the managing underwritersunderwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, if anyand (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(ni) provide and cause to be maintained a transfer agent and registrar for all such Registrable SecuritiesSecurities covered by such registration statement not later than the effective date of such registration statement;
(oj) enter into such customary agreements (including including, if applicable, an underwriting agreement) and take all such other actions in connection therewith as the Majority Participating Shareholders Holders or the managing underwriters, if any, underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such connection, whether or not an underwriting agreement is entered into and whether or not may, at their option, require that the registration is an underwritten registration Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(k) use its reasonable best efforts (i) make to obtain an opinion from the Company’s counsel and a comfort letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such representations registration statement, in each case, in customary form and warranties covering such matters as are customarily covered by such opinions and comfort letters (including, in the case of such comfort letter, events subsequent to the Participating Shareholders date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requestedMajority Participating Holders, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel furnish to each Holder participating in the Company, offering and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriterseach underwriter, if any, covering the matters customary in underwritten primary offerings a copy of such opinion and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject letter addressed to such accountants' customary procedures, addressed underwriter;
(l) deliver promptly to the counsel for each Participating Shareholders Holder and the underwritersto each managing underwriter, if any, such letters copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to be in customary form and covering matters of discussions with the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 SEC or its staff with respect to all parties to be indemnified pursuant to said Section; and (v) the registration statement, and, upon receipt of such confidentiality agreements as the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwritersreasonably request, if any, 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 thereunder;
(p) make reasonably available for inspection during normal business hours by the counsel for each Participating ShareholdersHolder, by counsel for any underwriter underwriter, participating in any disposition to be effected pursuant to such registration statement, statement and by any attorney, accountant or other agent retained by the any Participating Shareholders Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's ’s officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such counsel for a Participating Holder, counsel for an underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qm) otherwise use its reasonable best efforts to comply with all applicable rules and regulations obtain the prompt withdrawal of any order suspending the effectiveness of the SECregistration statement, and make generally available to its security holders, earnings statements satisfying or the provisions prompt lifting of Section 11(a) any suspension of the qualification of any of the Registrable Securities Actfor sale in any jurisdiction;
(n) provide a CUSIP number for all Registrable Securities, no not later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statementregistration statement;
(o) use its best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(p) prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), which and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or underwriters may reasonably request;
(q) furnish to counsel for each Participating Holder and to each managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements shall cover said twelve and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (12)-month periods; andincluding each preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith;
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require cooperate with the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders Holders and the distribution managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities as to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the Company may from time underwriting agreement at least three Business Days prior to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition sale of Registrable Securities until such Shareholder's receipt to the underwriters or, if not an underwritten offering, in accordance with the instructions of the copies Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(s) cooperate with any due diligence investigation by any Manager, underwriter or Participating Holder and make available such documents and records of the supplemented or amended Prospectus contemplated by Section 5(l)Company and its Subsidiaries that they reasonably request (which, or until it is advised in writing (the "ADVICE") by the Company that the use case of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.Particip
Appears in 2 contracts
Sources: Registration Rights Agreement (Strive, Inc.), Registration Rights Agreement (Strive, Inc.)
Registration Procedures. Whenever a Shareholder has the Holders of Holders' Securities have requested that any Registrable Holders' Securities be registered pursuant to this Agreement, CB&I will use its reasonable best efforts to effect the Company shall promptly take all such actions as may be necessary or desirable to permit the registration and sale of such Registrable Holders' Securities in accordance with the intended method or methods of disposition thereofthereof and, and pursuant thereto the Company shall thereto, CB&I will as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Holders' Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 effective (provided that before filing a registration statement or prospectus, or any amendment thereto amendments or any Prospectus or any supplement thereto (including supplements thereto, CB&I will furnish copies of all such documents incorporated by reference) proposed to which be filed to the Participating Shareholders counsel or counsels for the underwriters, if any, shall reasonably object in light Selling Holders of the requirements of the Holders' Securities Act or any other applicable laws or regulationscovered by such registration statement);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus(es) used in connection therewith as may be necessary to keep such registration statement effective until the earlier of such time as all of such Holders' Securities have been disposed of in accordance with the intended methods of disposition set forth in such registration statement or the expiration of 135 days after such registration statement becomes effective (provided that such 135-day period shall be extended (i) in the case of a Demand Registration Statement continuously effective for such number of days that equals the number of days elapsing from (A) the date written notice contemplated by Section 3.05(e) hereof is given by CB&I to (B) the date on which CB&I delivers to the Selling Holders the supplement or amendment contemplated by Section 3.05(e) hereof and (ii) for a period of not less than ninety (90) days; cause time equal to the Prospectus to be supplemented by period the Holder refrains from selling any required Prospectus supplementHolders' Securities included in such registration at the request of CB&I or an underwriter), and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods of disposition by the Participating Shareholders Selling Holders thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any furnish to each Selling Holder of Holders' Securities such Person) confirm such advice in writing, (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 same has become effective, (ii) number of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders registration statement, each amendment and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment supplement thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by referencethe prospectus(es) and a reasonable number of conformed copies of all included in such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons Selling Holder may reasonably request; request in order to facilitate the Company consents to the use disposition of the Prospectus or any amendment or supplement thereto Holders' Securities owned by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretosuch Selling Holder;
(id) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, qualify such Registrable Holders' Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter Selling Holder reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition in such jurisdictions of the Registrable Holders' Securities covered owned by the Registration Statement; such Selling Holder (provided that the Company CB&I will 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 subparagraph, (ii) consent to general service of process or taxes in any such jurisdiction where it is not then so subject; providedjurisdiction, further, that the Company will not be required or (iii) subject itself to qualify such Registrable Securities taxation in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction);
(je) cooperate with the Participating Shareholders and the managing underwritersnotify each Selling Holder of such Holders' Securities, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities at any time when a prospectus relating thereto is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as Act, of the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) aboveas a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, CB&I will prepare a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the Registrable such Holders' Securities, the Prospectus such prospectus will not contain an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(mf) use its reasonable best efforts to cause all Registrable such Holders' Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other securities exchange on which similar securities issued by the Company CB&I are then listed or if requested by Shareholder or no such securities are then listed, such securities exchange as the managing underwriters, if anySelling Holders of a majority of the Holders' Securities included in such registration may request;
(ng) provide a transfer agent and registrar for all Registrable Securitiessuch Holders' Securities not later than the effective date of such registration statement;
(oh) enter into such customary agreements (including an underwriting agreementagreements in customary form) and take all such other customary actions in connection therewith as Participating Shareholders the Selling Holders of a majority of the Holders' Securities being sold or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Holders' Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitationbut not limited to, an agreement to not sell equity securities during effecting a customary lock-up period) and confirm the accuracy stock split or a combination of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereundershares);
(pi) make available for inspection during normal business hours by the Participating Shareholdersany Selling Holder of Holders' Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such Selling Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the CompanyCB&I, and cause the CompanyCB&I's officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by the Participating Shareholders or any such Selling Holder, underwriter, attorney, accountant or agent in connection with such registration statement; provided provided, however, that any records, information or documents that are designated furnished by the Company CB&I and that are non-public shall be used only in writing as confidential connection with such registration and shall be kept strictly confidential by any Selling Holder of Holders' Securities except to the extent disclosure of such Personsrecords, information or documents is required by written order of a court or other governmental authority having jurisdiction;
(qj) otherwise advise each Selling Holder of such Holders' Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to comply with all applicable rules and regulations of prevent the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end issuance of any twelve stop order or to obtain its withdrawal if such stop order should be issued; and
(12)-month period k) furnish on the date or dates provided for in the underwriting agreement: (i) commencing at an opinion of counsel, addressed to the end of any fiscal quarter underwriters, covering such matters as such counsel and underwriters may reasonably agree upon, including such matters as are customarily furnished in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting connection with an underwritten offering, and (ii) beginning with a letter or letters from the first month independent certified public accountants of CB&I addressed to the underwriters, covering such matters as such accountants and underwriters may reasonably agree upon, in which letter(s) such accountants shall state, without limiting the generality of the Company's first fiscal quarter commencing after foregoing, that they are independent certified public accountants within the effective date meaning of the Registration StatementSecurities Act and that in their opinion the financial statements and other financial data of CB&I included in the registration statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(lprospectus(es), or until it is advised any amendment or supplement thereto, comply in writing (all material respects with the "ADVICE") by the Company that the use applicable accounting requirements of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceAct.
Appears in 2 contracts
Sources: Purchase Agreement (Chicago Bridge & Iron Co N V), Purchase Agreement (Wedge Group Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this Agreement, If and whenever the Company shall promptly take all such actions as may be necessary or desirable is ----------------------- required by the provisions of this Agreement to permit the sale effect a registration of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleSecurities:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, The Company will use its commercially reasonable best efforts to prepare and file with the SEC not later than sixty SEC, within the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (60or on such other registration form available to the Company that permits the greatest extent of incorporation by reference of materials filed by the Company, under the Exchange Act) and will use commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable thereafter and to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 180 days after receipt such Registration Statement becomes effective, in the case of registrations pursuant to Section 2, or (2) 90 days after such Registration Statement becomes effective, in the relevant Demand Request (which sixty (60) day case of registrations pursuant to Section 3, in every case as any such period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 subsection (h) or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;Section 8.
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the The Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, will prepare and file with the SEC such amendments, post- effective amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective for a such period of not less than ninety time required by subsection (90) days; cause the Prospectus to a), as such period may be supplemented by any required Prospectus supplement, and as so supplemented to be filed extended pursuant to Rule 424 under the Securities Act; and subsection (h) or Section 8.
(c) The Company will comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in during which any such Registration Statement or supplement is required to the Prospectus;be effective.
(d) notify The Company will furnish to any Holder and any underwriter of Registrable Securities (1) such number of copies (including manually executed and conformed copies) of such Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of the Participating Shareholders prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and the managing underwritersfinal prospectus and including prospectus supplements), and (3) such number of copies of other documents, in each case as the Holder or such underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to register or qualify all Registrable Securities covered by such Registration Statement under the securities or "blue sky" laws of states of the United States and any other jurisdiction as any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; but the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject.
(f) The Company will use, as soon as practicable after the effectiveness of the Registration Statement, commercially reasonable efforts to cause the Registrable Securities covered by such Registration Statement to be registered with, or approved by, such other United States and Cayman Islands public, governmental or regulatory authorities, if any, promptlyas may be required in connection with the disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, and the Nasdaq National Market System) on which any securities of the Company are then listed, if the listing of such Registrable Securities is then permitted under the applicable rules of such exchange (or if applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable and, if requested by any such Person) Holder, confirm such advice notification in writing, (i1) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment thereto has been filed with and declared effective by the same has become effectiveSEC, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii2) of the issuance by the SEC of any stop order suspending or the effectiveness coming to its knowledge of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v3) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi4) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the a Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of related prospectus so that such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder 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 to make the statements therein, in light of the circumstances under which they are made, not misleading;
), and (m5) use its reasonable best efforts of the Company's determination that the filing of a post-effective amendment to cause all a Registration Statement is necessary or appropriate. Upon the receipt of any notice from the Company of the occurrence of any event of the kind described in clause (4), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities covered by pursuant to the Registration Statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be listed on the Nasdaq National Market and each other exchange on which similar securities issued effective shall be extended by the Company are then listed if requested by Shareholder or number of days from and including the managing underwritersdate such notice is provided, if any;to and including the date when the Holders shall have received copies of the corrected prospectus.
(ni) provide a transfer agent and registrar for all Registrable Securities;
(o) The Company will enter into such agreements (including an underwriting agreement) and take all such other appropriate actions in connection therewith as Participating Shareholders or the managing underwriters, if any, are customary and reasonably request in order necessary 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement making its management available to not sell equity securities during a customary lock-up period) and confirm the accuracy of extent reasonably requested by the same if and when requestedHolders to participate in marketing presentations to potential investors in connection with any underwritten offering), and matters relating in that regard, will deliver to the compliance of the Registration Statement Holders such documents and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters certificates as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters Holders of a majority of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered intoRegistrable Securities being sold or, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and applicable, the managing underwriters, if any, to evidence the Company's compliance with clause (i) above and with any customary conditions contained this Agreement, including, 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 case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the extent required thereunder;
(p) make available for inspection during normal business hours by managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorneyor if such letter can not be obtained through the exercise of commercially reasonable efforts, accountant or other agent retained by cause its independent accountants to deliver to the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders financial statements included or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (registration statement at the Company's expense) all copies, other than permanent file copies highest level permitted to be given by such accountants under the then in such Shareholder's possession, applicable standards of the Prospectus covering American Institute of Certified Public Accountants with respect to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Scottish Annuity & Life Holdings LTD), Registration Rights Agreement (Scottish Annuity & Life Holdings LTD)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to use its best efforts to effect the registration of the offer and sale of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 1.1, 1.2 and 2, the Company shall will promptly:
(a) prepare, and as soon as practicable, but in any event within 60 days thereafter, file with the Commission, a registration statement with respect to the offer and sale of such Registrable Securities, make all required filings with the NASD or applicable securities exchange and use its best efforts to cause such registration statement to become effective as soon as practicable;
(b) prepare and promptly take all file with the Commission such actions amendments and post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for so long as is required to comply with the provisions of the Securities Act and to complete the disposition of all securities covered by such registration statement in accordance with the intended method or desirable methods of disposition thereof, but in no event for a period of more than six months after such registration statement becomes effective;
(c) furnish copies of all documents proposed to permit be filed with the sale Commission in connection with such registration to (i) (x) counsel selected by the THL Parties in the case of a registration pursuant to Section 1.1, (y) counsel selected by RLB in the case of registration pursuant to Section 1.2 and (z) in all other circumstances, counsel selected by the THL Parties and, if different, counsel selected by the holders of a majority of the Registrable Securities to be sold in such registration, and, in each case, which counsel may also be counsel to the Company and (ii) each seller of Registrable Securities (or in the case of the initial filing of a registration statement, within five business days of such initial filing) and such documents shall be subject to the review of any such counsel referred to in clause (i) above. The Company shall not file any registration statement or any amendment or post-effective amendment or supplement to such registration statement or the prospectus used in connection therewith to which such counsel shall have reasonably objected in writing on the grounds that such amendment or supplement does not comply (explaining why) in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(d) furnish to each seller of Registrable Securities, without charge, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits and documents filed therewith) and such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller in accordance with the intended method or methods of disposition thereof;
(e) use its best efforts to register or qualify such Registrable Securities covered by such registration statement under the securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be necessary or advisable to enable such seller to consummate the disposition of such Registrable Securities in such jurisdictions in accordance with the intended method or methods of disposition thereof, provided that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, subject itself to taxation in any jurisdiction wherein it is not so subject, or take any action which would subject it to general service of process in any jurisdiction wherein it is not so subject;
(f) use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof;
(g) furnish to the THL Parties, on behalf of the THL Group, and to RLB, if requested by him in connection with a registration pursuant thereto the Company shall as expeditiously as possibleto Section 1.2:
(ai) with respect an opinion of counsel for the Company experienced in securities law matters, dated the effective date of the registration statement (and, if such registration includes an underwritten public offering, the date of the closing under the underwriting agreement); and
(ii) a "comfort" letter (unless the registration is pursuant to Section 2 and such a request letter is not otherwise being furnished to file a Registration Statement the Company), dated the effective date of such registration statement (and if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued an audit report on the Company's financial statements included in the registration statement, covering such 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 and such other matters as the THL Parties or RLB, as applicable, may reasonably request;
(h) notify each seller of any Registrable Securities made pursuant covered by such registration statement at any time when a prospectus relating thereto is required to Article 3, use its reasonable best efforts to prepare and file with be delivered under the SEC not later than sixty (60) days after receipt Securities Act of the relevant Demand Request (happening of any event or existence of any fact as a result of which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, prospectus included in such registration statement, as then in effect, includes an untrue statement of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president material fact or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory omits to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form state any material fact required to be used) and which form shall be available for stated therein or necessary to make the sale of the Registrable Securities 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; the Company shall statements therein not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object misleading in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference thereincircumstances then existing, except in the case of the preparation of the initial Registration Statement)and, the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) abovepromptly as is practicable, prepare and file with the SEC furnish to such amendments and post-effective amendments seller a reasonable number of copies of a supplement to the Registration Statement or an amendment of such prospectus as may be necessary so that, as thereafter delivered to keep the Registration Statement continuously effective for purchasers of such securities, such prospectus shall not include an untrue statement of a period of not less than ninety (90) days; cause the Prospectus material fact or omit to state a material fact required to be supplemented by any required Prospectus supplementstated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(i) otherwise comply with all applicable rules and regulations of the Commission, and make available to its security holders, as so supplemented to be filed pursuant to soon as reasonably practicable, an earnings statement of the Company (in form complying with the provisions of Rule 424 158 under the Securities Act; and comply ) covering the period of at least 12 months, but not more than 18 months, beginning with the provisions first month after the effective date of the such registration statement;
(j) notify each seller of any Registrable 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 Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, registration statement (i) when the Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement such registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement such registration statement or the Prospectus to amend or to supplement such prospectus or for additional information, (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement such registration statement or the initiation of any proceedings for that purpose, purpose and (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities such securities for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening institution of any proceeding proceedings for any of such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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 misleadingpurposes;
(ek) make use every reasonable effort to obtain the withdrawal lifting of any stop order that might be issued suspending the effectiveness of the Registration Statement such registration statement at the earliest possible moment;
(fl) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
its best efforts (i) prior (A) to the date list such Registrable Securities on any securities exchange on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the equity securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwritersor, if any;
no such equity securities are then listed, on an exchange selected by the Company, if such listing is then permitted under the rules of such exchange, or (nB) if such listing is not practicable, to secure designation of such securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure NASDAQ authorization for such Registrable Securities, and, without limiting the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD, and (ii) to provide a transfer agent and registrar for all such Registrable SecuritiesSecurities not later than the effective date of such registration statement and to instruct such transfer agent (A) to release any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or the lead underwriter;
(om) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders the sellers of Registrable Securities or the managing underwriters, if any, underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionSecurities, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requestedpreparing for, and matters relating to the compliance participating in, such number of the Registration Statement "road shows" and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and all such other matters customary selling efforts as the underwriters reasonably request in order to expedite or facilitate such disposition;
(n) furnish to any holder of such Registrable Securities such information and assistance as such holder may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters request in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver any "due diligence" effort which such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsseller deems appropriate; and
(ro) use its best efforts to take such all other reasonable steps that are necessary or advisable to permit effect the sale registration of such Registrable SecuritiesSecurities contemplated hereby. The As a condition to its registration of the offer and sale of Registrable Securities of any prospective seller, the Company may require such seller of any Registrable Securities as to which any registration is being effected to execute powers-of-attorney, custody arrangements and other customary agreements appropriate to facilitate the Participating Shareholders offering and to furnish to the Company such information and documents regarding the Participating Shareholders such seller, its ownership of Registrable Securities and the distribution disposition of the such Registrable Securities as the Company may from time to time reasonably request in writingwriting and as shall be required by law in connection therewith. Each Shareholder such holder agrees thatto furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such holder not materially misleading. The Company agrees not to file or make any amendment to any registration statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, which refers to (in a capacity as a selling stockholder) any seller of any Registrable Securities covered thereby by name, or otherwise identifies such seller as the holder of any Registrable Securities, to which counsel to the sellers may reasonably object, without the prior written consent of such seller, which consent shall not be unreasonably withheld. Each holder of Registrable Securities agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof3(h), such Shareholder holder will forthwith promptly discontinue such holder's disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Shareholderholder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l3(h), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if . If so directed by the Company, each Participating Shareholder will, or holder of Registrable Securities will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then copies, in such Shareholderholder's possession, possession of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such notice. If In the event that the Company shall give any such notice, the time periods period mentioned in Section 5(c3(a) 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(d)(vi) to and including the date when each seller of any Registrable Securities covered by such Participating Shareholder registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice3(h).
Appears in 2 contracts
Sources: Registration Rights Agreement (NTK Holdings, Inc.), Securityholders Agreement (NTK Holdings, Inc.)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleWorldPort shall:
(a) Use its reasonable efforts to (A) prepare and file with the Commission a registration statement with respect to the Initial Stock within ninety (90) days after the Closing, (B) have such registration statement declared effective within one hundred and fifty (150) days from the date of the Closing (one hundred and twenty (120) days if Worldport is, and remains, eligible to use a request Form S-3 Registration Statement), and (C) to file a Registration Statement covering cause the registration statement to remain effective until the earlier of (i) the date when all Registrable Securities made pursuant related to Article 3the Initial Stock have been sold, use or (ii) two (2) years from the Closing;
(b) Use its reasonable best efforts to (A) prepare and file with the Commission a registration statement with respect to the Deferred Stock within ninety (90) days of the date of issuance of the Deferred Stock to Holder as provided in the Purchase Agreement, (B) have such registration statement declared effective within one hundred and fifty (150) days from the date of such issuance (one hundred and twenty (120) days if Worldport is, and remains, eligible to use a Form S-3 Registration Statement), and (C) cause the registration statement to remain effective until the earlier of (i) the date when all Registrable Securities related to the Deferred Stock have been sold, or (ii) two (2) years from the date of issuance of the Deferred Stock as provided in the Purchase Agreement;
(c) Use its reasonable efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and supplements (including post-effective amendments amendments) to such registration statements and the Registration Statement prospectuses used in connection therewith as may be necessary to keep the Registration Statement continuously registration statements effective for a the period of not less than ninety (90referred to in Section 2(a) days; 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; Section 2(b) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the registration statement during such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(d) notify Furnish to each seller of Registrable Securities such number of copies of the Participating Shareholders registration statement, each amendment and supplement thereto (including post-effective amendments), the managing underwritersprospectus included in the registration statement (including each preliminary prospectus) and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder;
(e) Notify each 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 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 WorldPort shall promptly prepare a supplement or amendment (including post-effective amendments) to the prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(f) Cause all such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange on which similar securities issued by WorldPort are then listed, if any, promptly, ;
(g) If reasonably requested by a Holder promptly incorporate in a prospectus such information as the Holder indicates should be included relating to the plan of distribution.
(h) Promptly notify the Holders of Registrable Securities of the following events and (if requested by any such PersonPersons) confirm such advice notification in writing, : (i) when the Prospectus filing of the prospectus or any Prospectus prospectus supplement and the registration statement and any amendment or post-effective amendment has been filed, thereto and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, declaration of the effectiveness of such document; (ii) of any request requests by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ; (iii) the issuance or threat of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings for that purpose, ; and (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company WorldPort of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening threat of initiation of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(ei) make Make every reasonable effort to obtain prevent the withdrawal entry of any order suspending the effectiveness of the Registration Statement at registration statement and, in the earliest possible moment;
(f) as promptly as practicable after filing with event of the SEC issuance of any document which is incorporated by reference into the Registration Statement such stop order, or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment order suspending or supplement thereto as such Persons may reasonably request; the Company consents to preventing the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwritersrelated prospectus, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, WorldPort shall use its reasonable best efforts promptly to register or qualify, or cooperate with obtain the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws withdrawal of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do soorder;
(j) cooperate Cooperate with the Participating Shareholders and the managing underwriters, if any, selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; , and enable such Registrable Securities to be in such denominations lots and registered in such names as the managing underwriters Holders of Registrable Securities may request at least two (2) Business Days business days prior to any sale delivery of Registrable Securities to the underwriterssuch Holders of Registrable Securities;
(k) To the extent required under the applicable state's law, use its reasonable best efforts to cause the (x) register or qualify all Registrable Securities covered by such registration statement under the Registration Statement state securities or "blue sky" laws of up to be registered with or approved by such other governmental agencies or authorities within 10 states in the United States as selected by Hostmark, (y) keep such registration in effect during the term of this Agreement and (z) take any other action which may be reasonably necessary or advisable to enable the seller or sellers thereof or Holders of the underwriters, if any, Registrable Securities to consummate the disposition of such Registrable Securities;Registerable Securities in such jurisdictions pursuant to the Registration Statement.
(l) upon the occurrence Take actions similar to those set forth in clause (k) for such additional states as Hostmark may request in writing provided that all of any event contemplated by paragraph (d)(vi) above, prepare a supplement or postWorldPort's out-effective Amendment of-pocket costs and expenses related to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into taking such agreements actions in such additional jurisdictions (including an underwriting agreement) the reasonable fees and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition expenses of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel to the Company, and updates thereof (which counsel and opinions (in form, scope and substanceWorldPort's legal counsel) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested paid by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceHostmark.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sturm Donald L), Registration Rights Agreement (Worldport Communications Inc)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to use its best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 3.1 and 3.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possiblewill promptly:
(a) with respect subject to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3clauses (x), use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedy) and which form shall be available for the sale (z) of the Registrable Securities 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; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration StatementSection 3.1(b), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Securities and Exchange Commission as soon as practicable and in any event within 90 days, after receipt of a request pursuant to Section 3.1 a registration statement with respect to such securities, make all required filings with the NASD and use best efforts to cause such registration statement to become effective at the nearest practicable date;
(b) prepare and file with the Securities and Exchange Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith and such other documents as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement or supplement registration statement, but in no event for a period of more than six months after such registration statement becomes effective;
(c) furnish to counsel (if any) selected by the holders of a majority (by number of shares) of the Registrable Securities covered by such registration statement and to counsel for the underwriters in any underwritten offering copies of all documents proposed to be filed with the Securities and Exchange Commission (including all documents to be filed on a confidential basis) in connection with such registration, which documents will be subject to the Prospectusreview of such counsel; the Company shall not file any registration statement or prospectus or any amendments or supplements thereto pursuant to a registration under Section 3.1(a) if the holders of a majority of the Registrable Securities covered by such registration statement, their counsel, or the underwriters, if any, shall reasonably object in writing;
(d) notify furnish to each seller of such securities, without charge, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case, including all exhibits and documents filed therewith (other than those filed on a confidential basis), except that the Participating Shareholders Company shall not be obligated to furnish any seller of securities with more than two copies of such exhibits and documents), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) in conformity with the requirements of the Securities Act, and such other documents, as such seller may reasonably request in order to facilitate the disposition of the securities owned by such seller;
(e) use its best efforts to register or qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall request, and do any and all other acts and things which may be necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the securities owned by such seller, 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 wherein it is not so qualified, subject itself to taxation in any jurisdiction wherein it is not so subject, or take any action which would subject it to general service of process in any jurisdiction wherein it is not so subject;
(f) furnish to each seller a signed counterpart, addressed to the sellers, of
(i) an opinion of counsel for the Company experienced in securities law matters, dated the effective date of the registration statement, and
(ii) a "comfort" letter signed by the independent public accountants who have issued an audit report on the Company's financial statements included in the registration statement, subject to such seller having executed and delivered to the independent public accountants such certificates and documents as such accountants shall reasonably request, covering substantially the same matters with respect to the registration statement (and the managing underwritersprospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten Public Offerings of securities;
(i) notify each seller of any securities covered by such registration statement if anysuch registration statement, promptlyat the time it or any amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable, prepare and file with the Securities and Exchange Commission a post-effective amendment to such registration statement and use best efforts to cause such post-effective amendment to become effective such that such registration statement, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) notify each holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, if requested 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, in light of the circumstances under which they were made, not misleading, and, as promptly as is practicable, prepare and furnish to such holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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, in light of the circumstances under which they were made, not misleading;
(h) otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement of the Company complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act;
(i) notify each seller of any securities covered by any such Person) confirm such advice in writing, registration statement (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filedsuch registration statement, and, with respect to the Registration Statement or any post-effective amendmentamendment to such registration statement, when the same has shall have become effective, or any amendment of or supplement to the prospectus used in connection therewith shall have been filed, (ii) of any request by the SEC for amendments Securities and Exchange Commission to amend such registration statement or supplements to the Registration Statement amend or the Prospectus supplement such prospectus or for additional information, (iii) of the issuance by the SEC Securities and Exchange Commission of any stop order suspending the effectiveness of the Registration Statement such registration statement or the initiation of any proceedings for that purposeorder preventing or suspending the use of any preliminary prospectus, and (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities such securities for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening institution of any proceeding proceedings for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sopurposes;
(j) cooperate with use its best efforts (i) (x) to list such securities on any securities exchange on which the Participating Shareholders and the managing underwritersCommon Stock is then listed or, if anyno Common Stock is then listed, on an exchange selected by the Company, if such listing is then permitted under the rules of such exchange or (y) if such listing is not practicable or the Board determines that quotation as a NASDAQ National Market System security is preferable, to facilitate secure designation of such securities as a NASDAQ "national market system security" within the timely preparation and delivery meaning of certificates representing Registrable Securities Rule 11Aa2-1 under the Exchange Act or, failing that, to be sold and not bearing any restrictive legends; and enable secure NASDAQ authorization for such Registrable Securities securities, and, without limiting the foregoing, to be in such denominations and registered in such names as the managing underwriters may request arrange for at least two market makers to register as such with respect to such securities with the NASD, (2ii) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of such registration statement and (iii) to obtain a CUSIP number for the Registration Statement, which statements shall cover said twelve (12)-month periodsRegistrable Securities; and
(rk) take such other use every reasonable steps effort to obtain the lifting of any stop order that are necessary or advisable to permit might be issued suspending the sale effectiveness of such Registrable Securitiesregistration statement or of any order preventing or suspending the use of any preliminary prospectus. The Company may require the Participating Shareholders each seller of any securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writingwriting and as shall be required by law in connection therewith. Each Shareholder such holder agrees thatto furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such holder not materially misleading. The Company agrees not to file or make any amendment to any registration statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, which refers to any seller of any securities covered thereby by name, or otherwise identifies such seller as the holder of any securities of the Company, without the consent of such seller, such consent not to be unreasonably withheld, except that no such consent shall be required for any disclosure that is required by law. By acquisition of Registrable Securities, each holder of such Registrable Securities shall be deemed to have agreed that upon receipt of any notice from the Company of the happening of any event of the kind described in pursuant to Section 5(d)(vi) hereof3.3(g), such Shareholder holder will forthwith promptly discontinue such holder's disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Shareholder's receipt holder shall have received, in the case of clause (i) of Section 3.3(g), notice from the Company that such registration statement has been amended, as contemplated by Section 3.3(g), and, in the case of clause (ii) of Section 3.3(g), copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l3.3(g), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if . If so directed by the Company, each Participating Shareholder will, or holder of Registrable Securities will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then copies, in such Shareholderholder's possession, possession of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such notice. If In the event that the Company shall give any such notice, the time periods period mentioned in Section 5(c3.3(b) hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(vi) to and including the date when each seller of any Registrable Securities covered by such Participating Shareholder registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) 3.3(g). Notwithstanding any other provision of this Agreement, the parties hereto acknowledge that the Company shall have no obligation to prepare or file any registration statement prior to the Advicetime that financial information required to be included therein is available for inclusion therein.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fidelity National Financial Inc /De/), Stock Purchase Agreement (Fidelity National Financial Inc /De/)
Registration Procedures. Whenever If, and in each case when, the Company is required to effect a Shareholder has requested that registration of any Registrable Securities be registered pursuant to as provided in this AgreementSection 3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possiblepromptly:
(a) prepare and, in any event within forty-five days (thirty days in the case of a Form S-3 registration) after the end of the period under Section 3.2.1(a) within which a piggyback request for registration may be given to the Company, file with the Commission a Registration Statement with respect to a request to file a Registration Statement covering such Registrable Securities made pursuant to Article 3and use, use its reasonable best efforts to prepare and file with in the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, event the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participatingWKSI, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 commercially reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective within ninety days of the requirements of the Securities Act or any other applicable laws or regulationsinitial filing;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective (i) in the case of a shelf Registration Statement, until the earlier of (A) the date on which all remaining Registrable Securities may be sold under Rule 144 under the Securities Act without regard to volume limitations or (B) two years after the effective date of such Registration Statement, or (ii) in all other cases for a period not in excess of not less than ninety 270 days (90in each case, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement; provided that before filing a Registration Statement or supplement prospectus, or any amendments or supplements thereto in accordance with Sections 3.1 or 3.2, the Company will furnish to counsel selected pursuant to Section 3.3.3 hereof copies of all documents proposed to be filed, which documents will be subject to the Prospectusreview of such counsel;
(c) 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 filed therewith), such number of copies of the prospectus included in such Registration Statement (including each preliminary prospectus and summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities by such seller;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 securities or blue sky laws of covered by such registration in such jurisdictions as any each seller or underwriter of Registrable Securities shall reasonably requests in writing request, and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided jurisdictions, 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 (but for the requirements of this clause (d)) it is would not then be obligated to be so qualified qualified, or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(je) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery notify each seller of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the such Registration Statement Statement, at any time when a prospectus relating thereto is required to be registered with delivered under the Securities Act, 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 approved by 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 other governmental agencies seller, prepare and furnish to such seller a reasonable number of copies of an amended or authorities within the United States supplemental prospectus as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(mf) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable (but not more than 18 months) after the effective date of the Registration Statement, an earning statement which shall satisfy the provisions of Section 11(a) of the Securities Act;
(g) (i) if such Registrable Securities are Common Stock (including Common Stock issuable upon conversion, exchange or exercise of another security), use its best efforts to list such Registrable Securities on any securities exchange or authorize for quotation on each other market on which the Common Stock is then listed or authorized for quotation if such Registrable Securities are not already so listed or authorized for quotation; and (ii) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all such Registrable SecuritiesSecurities covered by such Registration Statement not later than the effective date of such Registration Statement;
(oh) enter into such customary agreements (including an underwriting agreementagreement in customary form), which shall include indemnification provisions in favor of underwriters and other Persons (in addition to the provisions of Section 3.4 hereof) covering the entirety of the Registration Statement, excluding any information supplied to the underwriters by the Holders selling Registrable Securities in such offering, and take all such other actions in connection therewith as the Principal Participating Shareholders Holders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Securities;
(i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during obtain a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "“comfort" ” letter or letters and updates thereof from the Company's ’s independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be accountants in customary form and covering matters of the type customarily covered in "by “comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into” letters, as the same Principal Participating Holders shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderreasonably request;
(pj) make available for inspection during normal business hours by the Participating Shareholdersany seller of such Registrable Securities covered by such Registration Statement, by any managing underwriter or underwriters participating in any disposition to be effected pursuant to such registration statement, Registration Statement and by any attorney, accountant or other agent retained by the Participating Shareholders any such seller or any such underwritermanaging underwriter(s), all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's ’s officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statementRegistration Statement (subject to each party referred to in this clause (j) entering into customary confidentiality agreements in a form reasonably acceptable to the Company);
(k) notify counsel (selected pursuant to Section 3.3.3 hereof) for the Holders of Registrable Securities included in such Registration Statement and the managing underwriter or agent, immediately, and confirm the notice in writing (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the prospectus or any amendment to the prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Registration Statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(l) use its best efforts to prevent the issuance of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable;
(m) if requested by the managing underwriter or agent or any Holder of Registrable Securities covered by the Registration Statement, incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such Holder reasonably requests to be included therein, including the number of Registrable Securities being sold by such Holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent, and any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; provided that and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(n) cooperate with the Holders of Registrable Securities covered by the Registration Statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any recordsrestrictive legends) representing securities to be sold under the Registration Statement, information and enable such securities to be in such denominations and registered in such names as the managing underwriter or documents that are designated by agent, if any, or such Holders may request;
(o) obtain for delivery to the Holders of Registrable Securities being registered and to the underwriter or agent an opinion or opinions from counsel for the Company in writing as confidential shall customary form and in form, substance and scope reasonably satisfactory to such Holders, underwriters or agents and their counsel;
(p) 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 kept confidential by such Persons;made with FINRA; and
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations make available the executive officers of the SEC, and make generally available Company to its security holders, earnings statements satisfying participate with the provisions Holders of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to and any underwriters in a firm any “road show” presentations or best efforts underwriting offering, and (ii) beginning investor telephone conference calls that may be reasonably requested by the Holders in connection with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceSecurities.
Appears in 2 contracts
Sources: Registration Rights and Coordination Agreement, Registration Rights and Coordination Agreement (West Corp)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this AgreementIn connection with the Company’s registration obligations hereunder, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleshall:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare Prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission such amendments, including post-effective amendments and supplements, to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the each Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, Prospectus used in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than ninety the Effectiveness Period, (90ii) days; cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 under 424, (iii) respond as promptly as reasonably practicable to any comments received from the Securities Act; Commission with respect to each Registration Statement or any amendment thereto, and (iv) during the Effectiveness Period, comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities Registrable Securities covered by such a Registration Statement during until such time as all of such Registrable Securities shall have been disposed of (subject to the applicable period terms of this Agreement) in accordance with the intended methods of disposition by the Participating Shareholders Holders thereof as set forth in such Registration Statement as so amended or supplement in such Prospectus as so supplemented; provided, however, that each Holder shall be responsible for the delivery of the Prospectus to the Prospectus;Persons to whom such Holder sells any of the Shares or the Warrant Shares (including in accordance with Rule 172 under the Securities Act), and Holder agrees to dispose of Registrable Securities in compliance with applicable federal and state securities laws.
(db) notify the Participating Shareholders and the managing underwritersNotify each Holder as promptly as reasonably practicable, if any, promptly, and but in no event longer than seven (if requested by any 7) Trading Days after such Person) confirm such advice in writingevent, (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 same has become effective, (ii) of any request by the SEC Commission or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the Prospectus or for additional informationinformation that pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”, (iii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings governmental action, litigation, hearing or other proceeding (“Proceedings”) for that purpose, and (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding Proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;.
(ec) make every Use commercially reasonable effort efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension of the Registration Statement at the earliest possible moment;
qualification (for exemption from qualification) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or for sale in any amendment or supplement thereto;jurisdiction, as soon as practicable.
(id) prior Prior to the date on which the Registration Statement is declared effectiveany resale of Registrable Securities by a Holder, use its commercially reasonable best efforts to register or qualify, qualify or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel selling Holders in connection with the registration or qualification of, (or exemption from the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller or underwriter Holder reasonably requests in writing writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the each Registration Statement; 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 qualified, subject the Company to take any action which would subject it to general service of process or taxes material tax in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required subject or file a general consent to qualify such Registrable Securities service of process in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;jurisdiction.
(je) If requested by a Holder, cooperate with the Participating Shareholders and the managing underwriters, if any, such Holder to facilitate the timely preparation and delivery of certificates or book entry statements representing Registrable Securities to be sold delivered to a transferee pursuant to a Registration Statement, which certificates or book entry statements shall be free, to the extent permitted by the Subscription Agreement and not bearing any under law, of all restrictive legends; , and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters any such Holder may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;reasonably request.
(kf) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;[Reserved.]
(lg) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;[Reserved.]
(mh) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;[Reserved.]
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties The Company may require each selling Holder to furnish to the Participating Shareholders Company a certified statement as to (i) the number of shares of Common Stock beneficially owned by such Holder and the underwritersany Affiliate thereof, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel to the Companyany FINRA affiliations, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from any natural persons who have the Company's independent certified public accountants, subject power to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters vote or dispose of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; Common Stock and (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates any other information as may be requested by the Participating Shareholders and the managing underwritersCommission, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders FINRA or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicestate securities commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp), Registration Rights Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant (a) In connection with SunCoke’s Registration obligations under Section 2.1 and Section 2.2, SunCoke shall use its reasonable best efforts to this Agreement, the Company shall promptly take all effect such actions as may be necessary or desirable Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall distribution thereof as expeditiously as possiblereasonably practicable (but in no event, in the case of the initial filing of the registration statement, later than 30 days after the date of a demand under Section 2.1 if the applicable registration form is Form S-3 or a successor form, and for any other form, 60 days from the date of such demand), and in connection therewith SunCoke shall:
(ai) 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 respect to a request to file the SEC a Registration Statement covering Registrable Securities made pursuant or Prospectus, or any amendments or supplements thereto, (A) furnish to Article 3the underwriters, use its reasonable best efforts if any, and to prepare the Holders, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such Holders and their respective counsel, and (B) not file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement amendments or supplements thereto (including such documents incorporated by reference) to which the Participating Shareholders Holders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsobject;
(bii) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial a Shelf Registration, Convertible Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) aboveExchange Registration, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by of the Shares registered thereon until the earlier of (A) such Registration Statement during the applicable period time as all of such Shares have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement registration statement or supplement to (B) the Prospectusexpiration of nine months after such registration statement becomes effective, plus the number of days that any filing or effectiveness has been delayed under Section 2.1(d);
(diii) in the case of a Shelf Registration (but not including any Convertible 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 earlier of (A) 36 months after the effective date of such registration statement plus the number of days that any filing or effectiveness has been delayed under Section 2.1(d), and (B) the date on which all the Shares subject thereto have been sold pursuant to such registration statement;
(iv) in the case of a Convertible Registration or an Exchange Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares subject thereto until such time as the rules, regulations and requirements of the Securities Act and the terms of the Convertible Securities no longer require such Shares to be registered under the Securities Act;
(v) notify the Participating Shareholders participating Holders and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personrequested) confirm such advice in writingwriting and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by SunCoke (iA) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, when the applicable Prospectus or any amendment or supplement to such Prospectus 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, (iiB) of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to the such Registration Statement or the such Prospectus or for additional information, (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for that purposesuch purposes, (ivD) if if, at any time any of time, the representations or and warranties of the Company contemplated by paragraph (o) below SunCoke in any applicable underwriting agreement cease to be true and correctcorrect in all material respects, and (vE) of the receipt by the Company SunCoke of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and ;
(vi) subject to Section 2.1(d), promptly notify each selling Holder and the managing underwriter or underwriters, if any, when SunCoke becomes aware of the occurrence of any event as a result of which makes any statement made in the applicable Registration Statement, Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleadingmisleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(evii) make every use its reasonable effort best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the effectiveness use of the Registration Statement at the earliest possible momentany preliminary or final Prospectus;
(fviii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as promptly the managing underwriter or underwriters and the Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing being notified of the Registration Statement), provide copies of matters to be incorporated in such document to counsel to the Participating Shareholders and to the managing underwritersProspectus supplement or post-effective amendment;
(gix) provide furnish to the Participating Shareholders each selling Holder and each managing underwriter, if any, without charge, at least one signed copy as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents);
(hx) deliver to the Participating Shareholders each selling Holder and the underwriterseach underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons Holder or underwriter may reasonably request; the Company request (it being understood that SunCoke consents to the use of the such Prospectus or any amendment or supplement thereto by the Participating Shareholders each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(ixi) 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, or and cooperate with each selling Holder, the Participating Shareholders and the managing underwriter or underwriters, if any, and their respective counsel counsel, in connection with the registration or qualification of, of such Registrable Securities for offer and sale under the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as any seller selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts or things reasonably necessary or advisable to enable keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the disposition continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered by the Registration Statement; provided that the Company SunCoke 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 taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(jxii) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with the Participating Shareholders each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and enable to register such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the managing underwriters underwriter(s), if any, may request at least two (2) Business Days prior to any such sale of Registrable Securities to Securities; provided that SunCoke may satisfy its obligations hereunder without issuing physical stock certificates through the underwritersuse of the Depository Trust Company’s Direct Registration System;
(kxiii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority and each securities exchange, if any, on which any of SunCoke’s securities are then listed or quoted and on each inter-dealer quotation system on which any of SunCoke’s securities are then quoted, and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of each such exchange, and use its reasonable best efforts to cause 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;
(lxiv) upon not later than the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities, Securities and provide the Prospectus will not contain an untrue statement applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that SunCoke may satisfy its obligations hereunder without issuing physical stock certificates through the use of a material fact or omit to state any material fact necessary to make the statements therein not misleadingDepository Trust Company’s Direct Registration System;
(mxv) use its reasonable best efforts obtain for delivery to cause all Registrable Securities covered by and addressed to each selling Holder and to the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder underwriter or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite opinions from the general counsel 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if anydeputy general counsel for SunCoke, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm each case dated the accuracy of the same if and when requested, and matters relating to the compliance effective date of the Registration Statement and or, in the Prospectus with event of an Underwritten Offering, the Securities Act; (ii) obtain opinions date of counsel to the Companyclosing under the underwriting agreement, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and each such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be case in customary form and covering matters of content for the type customarily covered of Underwritten Offering;
(xvi) in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if the case of an underwriting agreement is entered intoUnderwritten Offering, the same shall set forth in full the indemnification provisions obtain for delivery to and procedures of Article 7 with respect addressed to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders SunCoke and the managing underwriters, if anyunderwriter or underwriters and, to evidence compliance with clause (i) above the extent requested, each selling Holder, a cold comfort letter from SunCoke’s independent certified public accountants in customary form and with any customary conditions contained in content for the type of Underwritten Offering, dated the date of execution of the underwriting agreement or other agreement entered into by and brought down to the Company. The above shall be done at each closing under such the underwriting or similar agreement or as and to the extent required thereunderagreement;
(pxvii) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) 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 SunCoke’s first quarter commencing after the effective date of the applicable Registration Statement, an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after Act and the end rules and regulations promulgated thereunder and covering the period of any at least twelve (12)-month period 12) months, but not more than eighteen (i18) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offeringmonths, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement;
(xviii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xix) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of SunCoke’s securities are then listed or quoted and on each inter-dealer quotation system on which any of SunCoke’s securities are then quoted;
(xx) provide (A) each Holder participating in 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 SunCoke 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 SunCoke that are available to SunCoke, and cause all of SunCoke’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods to discuss the business of SunCoke and to supply all information available to SunCoke reasonably requested by any such Person in connection with such Registration Statement as shall cover said twelve (12)-month periodsbe necessary to enable them to exercise their due diligence responsibility, subject to the foregoing; and
(rxxi) to cause the senior executive officers of SunCoke to participate at reasonable times and for reasonable periods in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, except to the extent that such participation materially interferes with the management of SunCoke’s business; provided that the effectiveness period for any Demand Registration shall be increased on a day-for-day basis by the period of time that management cannot participate; and
(xxii) take such all other reasonable customary steps that are reasonably necessary or advisable to permit effect the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution registration of the Registrable Securities contemplated hereby.
(b) As a condition precedent to any Registration hereunder, SunCoke may require each Holder as to which any Registration is being effected to furnish to SunCoke such information regarding the Company may from time distribution of such securities and such other information relating to time reasonably request in writing. Each Shareholder agrees thatsuch Holder, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition its ownership of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.oth
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (SunCoke Energy, Inc.)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration, qualification, or compliance effected by the Company pursuant to this AgreementSection 3 hereof, the Company shall promptly take all such actions will keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with the intended method or methods of disposition thereofeach registration, qualification, and compliance and as to the completion thereof. At its expense with respect to any registration statement filed pursuant thereto to Section 3, the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in Registrable Securities, a material merger, acquisition registration statement on Form S-2 or any other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies or which is satisfactory to counsel for the Company and the Participating Shareholders (unless the offering is made on an underwritten basisshall deem appropriate, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 method(s) of distribution thereof, and use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; and remain effective at least for a period ending with the Company shall not file any Registration Statement first to occur of (i) the sale of all Registrable Securities covered by the registration statement, (ii) the availability under Rule 144 for the Holder to immediately, freely resell without restriction all Registrable Securities covered by the registration statement, and (iii) one year after a registration statement filed pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto Section 3(a) is declared effective by the Commission (including such documents incorporated by reference) to which in either case, the Participating Shareholders or the underwriters"Effectiveness Period"); provided, however, if anyat the end of such one-year period, any Holder is not able to immediately, freely resell all Registrable Securities that it owns, the Effectiveness Period shall reasonably object in light of the requirements of the Securities Act continue until terminated pursuant to clause (i) or any other applicable laws or regulations;
(b) ii); and not later than two business days before filing with the Commission a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five shall (5i) days before filing, furnish to each Participating Shareholder Holder a copy of the "Plan of Distribution" and "Selling Shareholder" portions of the registration statement and the underwriters, if any, copies other portions of all such documents proposed to be filed that the Company considers not to contain material, non-public information (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed and (including documents incorporated therein ii) notify each Holder of Registrable Securities covered by reference), such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to enable prevent the entry of such Participating Shareholders and the underwriters, stop order or to remove it if any, entered;
(b) if a registration statement is subject to review such documents prior by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the filing thereof, and satisfaction of the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyCommission;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such registration statement effective during the Registration Statement continuously effective for a Effectiveness Period (but in any event at least until expiration of the 90-day period referred to in Section 4(3) of not less than ninety (90) days; 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; Act and Rule 174, or any successor thereto, thereunder, if applicable), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods method(s) of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement;
(d) notify the Participating Shareholders and the managing underwritersfurnish, if anywithout charge, promptly, and (if requested to each Holder of Registrable Securities covered by any such Person) confirm such advice in writing, registration statement (i) when the Prospectus or a reasonable number of copies of such registration statement (including any Prospectus exhibits thereto other than exhibits incorporated by reference), each amendment and 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 effectivethereto as such Holder may request, (ii) such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any request by other prospectus filed under Rule 424 under the SEC for amendments or supplements to Securities Act) as such Holders may request, in conformity with the Registration Statement or requirements of the Prospectus or for additional informationSecurities Act, and (iii) of such other documents as such Holder may reasonably request in order to facilitate the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction or owned by such Holder, but only during the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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 misleadingEffectiveness Period;
(e) make every use its commercially reasonable effort best efforts to obtain register or qualify such Registrable Securities under such other applicable securities or blue sky laws of such jurisdictions as any Holder of Registrable Securities covered by such registration statement reasonably requests as may be necessary for the withdrawal of any order suspending the effectiveness marketability of the Registration Statement at Registrable Securities (such request to be made by the earliest possible momenttime the applicable registration statement is deemed effective by the Commission) and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder; 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 paragraph (e), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies becoming aware of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and event, notify each managing underwriter, without charge, at least one signed copy Holder of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale at any time when a prospectus relating thereto is required to be delivered under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions Securities Act of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) above, which comes to the Company's attention if as a result of such event 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 misleading and the Company shall promptly prepare and furnish to such Holder a supplement or post-effective Amendment amendment to such prospectus (or prepare and file appropriate reports under the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document Exchange Act) so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, unless suspension of the use of such prospectus otherwise is authorized herein or in the event of an S-2 Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the termination of such suspension or S-2 Blackout Period;
(mg) comply, and continue to comply during the period that such registration statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission with respect to the disposition of all securities covered by such registration statement;
(h) as promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities being offered or sold pursuant to the Registration Statement of the issuance by the Commission of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(i) permit the Holders of Registrable Securities being included in the Registration Statement and their legal counsel, at such Holders' sole cost and expense (except as otherwise specifically provided in Section 6) to review and have a reasonable opportunity to comment on the Registration Statement and all amendments and supplements thereto at least two Business Days prior to their filing with the Commission and shall not file any such document to which the Majority Holders reasonably object;
(j) make available for inspection by any Holder and any Inspector retained by such Holder, at such Holder's sole expense, all Records as shall be reasonably necessary to enable such Holder to exercise its due diligence responsibility, and cause the Company's officers, directors, and employees to supply all information which such Holder or any Inspector may reasonably request for purposes of such due diligence; provided, however, that such Holder shall hold in confidence and shall not make any disclosure of any record or other information which the Company determines in good faith to be confidential, and of which determination such Holder is so notified at the time such Holder receives such information, unless (i) the disclosure of such record is necessary to avoid or correct a misstatement or omission in the Registration Statement and a reasonable time prior to such disclosure the Holder shall have informed the Company of the need to so correct such misstatement or omission and the Company shall have failed to correct such misstatement of omission, (ii) the release of such record is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (iii) the information in such record has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such records to any Inspector until and unless such Inspector shall have entered into a confidentiality agreement with the Company with respect thereto, substantially in the form of this Section 4(j), which agreement shall permit such Inspector to disclose records to the Holder who has retained such Inspector. Each Holder agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the records deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning a Holder provided to the Company pursuant to this Agreement unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) disclosure of such information to the Staff of the Division of Corporation Finance is necessary to respond to comments raised by the Staff in its review of the Registration Statement, (iii) disclosure of such information is necessary to avoid or correct a misstatement or omission in the Registration Statement, (iv) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (v) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Holder and allow such Holder, at such Holder's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(k) use its reasonable best efforts to cause all the Registrable Securities covered by the Registration Statement to be listed quoted on the Nasdaq National Market and each OTC Bulletin Board or such other exchange principal securities market on which similar securities of the same class or series issued by the Company are then listed if requested by Shareholder or the managing underwriters, if anytraded;
(nl) provide a transfer agent and registrar registrar, which may be a single entity, for the Registrable Securities at all times;
(m) cooperate with the Holders of Registrable SecuritiesSecurities being offered pursuant to the Registration Statement to issue and deliver certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement within five Trading Days after delivery of certificates to the Company and enable such certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the Holders may request;
(n) during the Effectiveness Period, refrain from bidding for or purchasing any Common Stock or any right to purchase Common Stock or attempting to induce any Person to purchase any such security or right if such bid, purchase or attempt would in any way limit the right of the Holders to sell Registrable Securities by reason of the limitations set forth in Regulation M under the 1934 Act; and
(o) enter into such agreements (including an underwriting agreement) and take all such other reasonable actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order necessary to expedite or and 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution Holders of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver pursuant to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Nestor Inc), Registration Rights Agreement (Nestor Inc)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to use its commercially reasonable efforts to effect or cause the registration of any Registrable Securities be registered pursuant to under the Securities Act as provided in this AgreementSection 2, the Company shall promptly take all such actions will, as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall soon as expeditiously as possiblepracticable:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to 2.6.1. prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up requisite registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 commercially reasonable best efforts to cause such Registration Statement registration statement to become and remain effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, 2.6.2. prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such registration statement effective until the Registration Statement continuously effective for a period completion of not less than ninety (90the distribution of the Registrable Securities covered by such registration statement) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement registration statement during such period;
2.6.3. furnish to each seller of such Registrable Securities and each underwriter such number of copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), and such number of copies of the applicable period prospectus included in accordance such registration statement (including each preliminary prospectus and summary prospectus), in conformity with the intended methods requirements of disposition by the Participating Shareholders set forth in Securities Act, and such Registration Statement or supplement to the Prospectusother documents as such seller may reasonably request;
(d) 2.6.4. promptly notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested each Shareholder that holds Registrable Securities covered by any such Person) confirm such advice in writingregistration statement, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement such registration statement or any post-effective amendment, when the same has become amendment or supplement thereto becomes effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of such registration statement (and take all reasonable action to prevent the Registration Statement entry of such stop order or to remove it if entered, or the initiation of any proceedings for that purpose), or (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (viii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence happening of any event as a result of which makes any statement made the registration statement, as then in the Registration Statementeffect, the Prospectus prospectus related thereto or any document incorporated included therein by reference includes an untrue statement of a material fact or which requires the making of any changes in the Registration Statement, the Prospectus omits to state a material fact required to be stated therein or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made and promptly file such amendments and supplements which may be required on account of such event and use its commercially reasonable efforts to cause each such amendment and supplement to become effective;
(e) make every 2.6.5. promptly furnish counsel for each underwriter, if any, and for the selling Shareholders of Registrable Securities, copies of any written request by the SEC or any state securities authority for amendments or supplements to a registration statement and prospectus or for additional
2.6.6. use commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement a registration statement at the earliest possible momenttime;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document 2.6.7. use commercially reasonable efforts to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of cause all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the such registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange principal securities exchange, or authorized for quotation on NASDAQ, on which similar equity securities issued by the Company are then listed or authorized for quotation, or eligible for listing or quotation, if requested by Shareholder the listing or authorization for quotation of such securities is then permitted under the rules of such exchange or the managing underwriters, if anyNASD;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) 2.6.8. enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not with the registration is an underwritten registration (i) make underwriter of such offering in the form customary for such underwriter for similar offerings, including such representations and warranties to by the Participating Shareholders and Company, provisions regarding the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy delivery of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel to for the CompanyCompany and accountants’ letters, provisions regarding indemnification and updates thereof (which counsel and opinions (in formcontribution, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters terms and conditions as may are at the time customarily contained in such underwriter’s underwriting agreements for similar offerings (the sellers of Registrable Securities which are to be reasonably requested distributed by such underwriter(s) may, at their option, require that any or all of the Participating Shareholders representations and underwriterswarranties by, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of other agreements on the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered intopart of, the same Company to and for the benefit of such underwriter(s) shall set forth in full also be made to and for the indemnification provisions and procedures benefit of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereundersellers of Registrable Securities);
(p) 2.6.9. make available for inspection during normal business hours by representatives of the Participating Shareholders, selling Shareholders who hold Registrable Securities and any underwriter underwriters participating in any disposition pursuant to such registration statement, hereto and any attorney, counsel or accountant or other agent retained by the Participating such Shareholders or any such underwriterunderwriters, all relevant financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's respective officers, directors and employees of the Company to supply all information reasonably requested by the Participating Shareholders or any such representative, underwriter, attorney, counsel or accountant or agent in connection with a registration pursuant hereto; provided, however, that, with respect to records, documents or information which the Company determines, in good faith, to be confidential and as to which the Company notifies such representatives, underwriters, counsel or accountants in writing of such confidentiality, such representatives, underwriters, counsel or accountants shall not disclose such records, documents or information unless (i) the release of such records, documents or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (ii) such records, documents or information have previously been generally made available to the public, or (iii) the disclosure of such records, documents or information is necessary, in the written opinion of outside legal counsel, to avoid or correct a material misstatement or omission in the registration statement and then only after reasonable request has been made to the Company to make such disclosure and the Company has denied such request. Each selling Shareholder of such Registrable Securities 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 securities of the Company or its Affiliates (or for such Shareholder’s business purposes or for any reason other than in connection with a registration hereunder) unless and until such information is made generally available (other than by such Shareholder or where such Shareholder knows that such information became publicly available as a result of a breach of any confidentiality arrangement) to the public. Each selling Shareholder of such Registrable Securities further agrees that it will, upon learning that disclosure of such records is sought, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the records deemed confidential;
2.6.10. permit any beneficial owner of Registrable Securities who, in the sole judgment, exercised in good faith, of such holder, might be deemed to be a controlling person of the Company, to participate in the preparation of such registration statement; provided that any recordsor comparable statement and to require the insertion therein of material, information or documents that are designated by furnished to the Company in writing writing, that in the judgment of such holder, as confidential shall aforesaid, should be kept confidential by such Persons;included; and
(q) otherwise use 2.6.11. make reasonably available its reasonable best efforts to comply with all applicable rules employees and regulations of the SECpersonnel, and make generally available otherwise provide reasonable assistance, to its security holders, earnings statements satisfying the provisions of Section 11(a) of underwriters (taking into account the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month needs of the Company's first fiscal quarter commencing after ’s businesses and the effective date requirements of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(rmarketing process) take such other reasonable steps that are necessary or advisable to permit in the sale marketing of such Registrable SecuritiesSecurities in any underwritten offering. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. The Company shall not be required to register or qualify any Registrable Securities covered by such registration statement under any state securities, or blue sky, laws of such jurisdictions other than as it deems necessary in connection with the chosen method of distribution or to take any other actions or do any other things other than those it deems necessary or advisable to consummate such distribution, and the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not otherwise 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. Each Shareholder beneficial owner of Registrable Securities agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in subclauses (ii) and (iii) of Section 5(d)(vi) hereof2.6.4, such Shareholder beneficial owner will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Shareholder's beneficial owner’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus2.6.4, and, if so directed by the Company, each Participating Shareholder will, or such beneficial owner will request the underwriters to, deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies then in such Shareholder's beneficial owner’s possession, of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of that was in effect prior to such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented amendment or amended prospectus contemplated by Section 5(l) or the Advicesupplement.
Appears in 2 contracts
Sources: Merger Agreement (Workstream Inc), Merger Agreement (Workstream Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this AgreementIn connection with the registration ----------------------- obligations of the Company under Sections 3 and 4, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleshall:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement with respect to such Registrable Securities on a any form for which the Company then qualifies or which is satisfactory to counsel for the Company and the Participating Shareholders (unless the offering is made on an underwritten basisshall deem appropriate, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become and remain effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement and such amendments and supplements to the Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder necessary to keep the such Registration Statement continuously effective for a period (i) in the case of not less than ninety an Underwritten Offering, until each underwriter has completed the distribution of all securities purchased by it, and (90ii) days; in the case of any other registration, until the Registrable Securities covered thereby cease to be Registrable Securities, and cause the Prospectus to be supplemented by any required Prospectus supplement, and as so amended and supplemented to be filed pursuant to Rule 424 under the Securities Act; , and otherwise use reasonable best efforts to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during until such time as is specified in clause (i) or (ii) above, as the case may be;
(c) furnish to each Holder of such Registrable Securities such number of copies of such Registration Statement and of each amendment and post- effective amendment thereto, any Prospectus or Prospectus supplement and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in Section 8(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) use reasonable best efforts to register or qualify such Registrable Securities covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions as each Holder shall reasonably request, and to do any and all other acts and things which may be reasonably necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder, except that the Company shall not be required for any such purpose to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 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 applicable period referred to in accordance with Section 7(b), that the intended methods Company has become aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of disposition by the Participating Shareholders set forth 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 8(b) to refrain from effecting public sales or distributions of Registrable Securities being referred to as a "Section 7(e) Period"), and prepare and furnish to such Holder, as soon as ------------------- reasonably practicable, a reasonable number of copies of an amendment to such Registration Statement or supplement to such related Prospectus as may be necessary so that, as thereafter delivered to the Prospectuspurchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(df) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested each Holder of Registrable Securities covered by such Registration Statement at any such Person) confirm such advice in writing, time,
(i) when the Prospectus or any Prospectus supplement or post-post- effective amendment has been filed, filed and, with respect to the Registration Statement or any post-effective amendment, when the same Registration Statement or such post-effective amendment has become effective, ;
(ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation of any proceedings for that purpose, such purposes; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (viii) of the receipt by of the Company of any written notification with respect to of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide make available to its stockholders an earnings statement which shall satisfy the Participating Shareholders and each managing underwriter, without charge, at least one signed copy provisions of Section 11(a) of the Registration Statement and any post-effective amendment theretoSecurities Act, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by referenceprovided that the Company shall be deemed to have complied with this Section 7(g) and a reasonable number of conformed copies of all such documentsif it has complied with Rule 158 under the Securities Act;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
reasonable best efforts (i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities Conversion Shares and Warrant Shares covered by the such Registration Statement to be listed on the Nasdaq National Market and each other any securities exchange or automated quotation system on which similar securities issued by the Company are Common Stock is then listed if requested by Shareholder or the managing underwriterslisted, if any;
such Conversion Shares and Warrant Shares are not already so listed and if such listing is then permitted under the rules of such exchange or automated quotation system, (nii) to provide a transfer agent and registrar for all Registrable SecuritiesSecurities covered by such Registration Statement no later than the effective date of such Registration Statement and (iii) prepare and file with the SEC, within the time period specified by Section 12(g) of the Exchange Act, a Registration Statement on Form 8-A registering the Preferred Shares and the Warrants if such filing is required pursuant to Section 12(g) of the Exchange Act;
(oi) if the registration involves an Underwritten Offering, enter into such agreements (including an a customary underwriting agreement) agreement and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration therewith:
(i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, underwriters in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; comparable Underwritten Offerings;
(ii) use reasonable best efforts to obtain opinions of counsel to the Company, and updates thereof (which counsel and opinions Company (in form, scope and substance) shall be substance reasonably satisfactory to the managing underwriters) ), addressed to Participating Shareholders and the underwriters, if any, and covering the matters customary customarily covered in underwritten primary offerings and such other matters as may be reasonably opinions requested by the Participating Shareholders and underwriters, if any; in comparable Underwritten Offerings;
(iii) use reasonable best efforts to obtain "cold comfort" letters and updates bring-downs thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, accountants addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters independent accountants in connection with primary underwritten offeringsUnderwritten Offerings; and
(iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be reasonably requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderagreement;
(pj) make available for inspection during normal business hours cooperate with the Holders of Registrable Securities covered by such Registration Statement and the Participating Shareholdersmanaging underwriter or underwriters or agents, if any, to facilitate the timely preparation and delivery of certificates (not bearing any underwriter participating in any disposition pursuant restrictive legends) representing the securities to be sold under such registration statementRegistration Statement, and any attorneyenable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters or agents, accountant if any, or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information Holders may request;
(k) if reasonably requested by the Participating Shareholders managing underwriter or any such underwriter, attorney, accountant underwriters or agent a Holder of Registrable Securities being sold in connection with an Underwritten Offering, incorporate in a Prospectus supplement or post- effective amendment to the Registration Statement such registration statement; provided that any recordsinformation as the managing underwriters and the Holders of a Majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information or documents that are designated by with respect to the Company in writing as confidential shall be kept confidential principal amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such Personsunderwriters and any other terms of the Underwritten Offering of the Registrable Securities to be sold in such offering and make all required filings of such Prospectus supplement or post-effective amendment as promptly as practicable upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(ql) otherwise use its reasonable best efforts to comply with all applicable rules and regulations if reasonably requested by the managing underwriter or underwriters or a Holder of Registrable Securities being sold in an Underwritten Offering, cause appropriate representatives of the SEC, and make generally available Company to its security holders, earnings statements satisfying participate in any "road shows" or similar marketing activities;
(m) in the provisions of Section 11(a) event of the Securities Act, no later than forty-five (45) days after the end issuance of any twelve (12)-month period (i) commencing at stop order of which the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with Company is aware suspending the first month of the Company's first fiscal quarter commencing after the effective date effectiveness of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented order suspending or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that preventing the use of any related Prospectus or suspending the Prospectus may be resumedqualification of any Registrable Securities included in the Registration Statement for sale in any jurisdiction, use reasonable best efforts promptly to obtain the withdrawal of such stop order or other order, and has received copies of any additional or supplemental filings the period for which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company Registration Statement shall give such notice, the time periods mentioned in Section 5(c) hereof be kept effective shall be extended by a number of days equal to the number of days during between the period from issuance and including withdrawal of any stop order or other order (a "Section 7(m) Period"); and -------------------
(n) disclose in each Registration Statement that, pursuant to Rule 416 under the date Securities Act, such Registration Statement shall register the offering of an indeterminate number of shares of Common Stock which may become issuable pursuant to the antidilution provisions of the giving of such notice pursuant to Section 5(d)(vi) to Preferred Shares and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceWarrants.
Appears in 2 contracts
Sources: Registration Rights Agreement (Itc Holding Co Inc), Registration Rights Agreement (Itc Deltacom Inc)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 3.1 and 3.2, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect prepare and (within 60 days after the end of the period within which requests for registration may be given to the Company or in any event as soon thereafter as possible; PROVIDED that, in the case of a registration pursuant to Section 3.1, such filing to be made within 60 days after the initial request to file a Registration Statement covering of an Initiating Holder of Registrable Securities made pursuant or in any event as soon thereafter as possible) file with the Commission the requisite registration statement to Article 3, effect such registration (including such audited financial statements as may be required by the Securities Act) and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective; PROVIDED FURTHER 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 thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel;
(ii) prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of (x) in accordance with the intended methods case of disposition by a registration pursuant to Section 3.1, the Participating Shareholders set forth expiration of 120 days after such registration statement becomes effective, or (y) in the case of a registration pursuant to Section 3.2, the expiration of 90 days after such Registration Statement or supplement to the Prospectusregistration statement becomes effective;
(diii) notify the Participating Shareholders furnish to each seller of Registrable Securities covered by such registration statement and the managing underwriterseach underwriter, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance securities being sold by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of seller such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents;
(h) deliver to the Participating Shareholders , as such seller and the underwritersunderwriter, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus public sale or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale other disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(iiv) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale other securities covered by such registration statement under the securities or blue sky or similar laws of such jurisdictions as any seller thereof and any underwriter of the securities being sold by such seller shall reasonably request, to keep such registrations or underwriter qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such seller and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities covered securities 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 wherein it is would not then but for the requirements of this subdivision (iv) be obligated to be so qualified qualified, to subject itself to taxation in any such jurisdiction or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kv) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lvi) upon the occurrence furnish to each seller of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement a signed counterpart, addressed to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders seller and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.of
Appears in 2 contracts
Sources: Revolving Credit Agreement (Aps Healthcare Inc), Warrantholders Rights Agreement (Aps Healthcare Inc)
Registration Procedures. Whenever a Shareholder has requested that required under this Agreement to use its commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this AgreementSecurities, the Company shall promptly take all such actions as may be necessary or desirable will use its commercially reasonable efforts to permit effect the registration and the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall shall, as expeditiously as reasonably possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare Prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) Commission a Registration Statement on a form for which the Company then qualifies which is satisfactory with respect to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale of the such Registrable Securities 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 remain effective until the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulationsdistribution thereof has been completed;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents Furnish to be incorporated by reference therein, except in the case Holders such numbers of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents a prospectus, including a preliminary prospectus, in substantially conformity with the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereofSecurities Act, and such other documents as they may reasonably request in order to facilitate the Company shall make disposition of such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated Registrable Securities owned by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anythem;
(c) subject to paragraph Notify the selling Holders of Registrable Securities promptly (bbut in any event within two (2) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) business days; cause the Prospectus to be supplemented by any required Prospectus supplement), and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, writing (i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purposeorder preventing or suspending the use of any preliminary prospectus, (iviii) if at any time any when a prospectus is required by the Securities Act to be delivered in connection with the sales of Registrable Securities, the Company becomes aware that the representations or and warranties of the Company contained in any agreement (including, without limitation, any underwriting agreement) contemplated by paragraph (oin Section 8(g) below cease to be true and correctcorrect in any material respect, (viv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities for offer or sale in any jurisdiction jurisdiction, or (v) if the initiation or threatening of any proceeding for such purpose, and (vi) Company becomes aware of the occurrence happening of any event which that makes any statement made in the such Registration Statement, the Prospectus Statement or any related prospectus or document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in the such Registration Statement, prospectus or documents so that, in the Prospectus case of such Registration Statement, it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ed) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon Upon the occurrence of any event contemplated by paragraph (d)(viSection 8(c) above, as promptly as practicable, prepare a supplement or post-effective Amendment amendment to the Registration Statement or a supplement to the Prospectus related prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(me) As promptly as practicable after the Exchange Act Registration Statement or the Securities Act Registration Statement, as applicable, shall have been declared effective under the Securities Act, use its commercially reasonable best efforts to cause all the Shares to be authorized to be quoted and/or listed (to the extent applicable) on the American Stock Exchange, the New York Stock Exchange, the NASDAQ National Market (or, in each case, a successor thereto) or a similarly recognized trading platform, if the Shares so qualify;
(f) Use its commercially reasonable efforts to register and qualify the Registrable Securities covered by the Registration Statement to under such other securities or “Blue Sky” laws of such jurisdictions as shall be listed on reasonably appropriate for the Nasdaq National Market and each other exchange on which similar securities issued distribution of the Registrable Securities covered by the Registration Statement; provided that the Company are shall not be required in connection therewith or as a condition thereto, to qualify to do business or to file a general consent to service of process in any such states or jurisdictions; and provided, further that (anything in this Agreement to the contrary notwithstanding with respect to the bearing of expenses) if any jurisdiction in which the Registrable Securities shall be qualified requires that expenses incurred in connection with the qualification of the securities in that jurisdiction be borne by selling shareholders, then listed if requested such expenses shall be payable by Shareholder or the managing underwriters, if anyHolders of such Registrable Securities pro rata to the extent required by any jurisdiction;
(ng) provide a transfer agent and registrar for all Registrable Securities;
(o) In the case of any underwritten offering, enter into such agreements (including an underwriting agreement) agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions in connection therewith as Participating Shareholders or are reasonably requested by the managing underwriters, if any, reasonably request underwriters in order to expedite or facilitate the registration or disposition of such the Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders underwriters, with respect to the business of the Company and its subsidiaries, and the underwritersRegistration Statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (includingofferings, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel to the Company, Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) ), addressed to Participating Shareholders and the underwriters, if any, underwriters covering the matters customary customarily covered in opinions requested in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwritersofferings, if any; (iii) obtain "“cold comfort" ” letters and updates thereof from the Company's independent public certified accountants of the Company (and, if necessary, any other independent certified public accountantsaccounts of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, subject or are required to such accountants' customary proceduresbe, included in the Registration Statement), addressed to the Participating Shareholders and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters by underwriters in connection with primary underwritten offerings; offerings and (iv) if an any underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures no less favorable to the Holders of Article 7 with respect Registrable Securities than those set forth in Section 12 hereof (or such other provisions and procedures acceptable to all parties to be indemnified pursuant to said Section; and (v) Holders of a majority of the Company shall deliver Registrable Securities covered by such documents and certificates as may be requested by the Participating Shareholders Registration Statement and the managing underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement underwriters or other agreement entered into by the Companyagents). The above actions shall be done taken at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;
(ph) make Make available for inspection during normal business hours by the Participating Shareholdersany selling Holder of Registrable Securities, by any underwriter participating in any disposition to be effected pursuant to such registration statement, Registration Statement and by any attorney, accountant or other agent retained by the Participating Shareholders any such selling Holder or any such underwriter, all pertinent financial and other records, records and pertinent corporate documents and properties of the Company, and cause all of the Company's ’s officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such selling Holder, underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(ri) take such other Use every reasonable steps that are necessary or advisable effort to permit prevent the sale issuance of any stop order suspending the effectiveness of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt Registration Statement or of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented order preventing or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that suspending 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, preliminary prospectus and, if so directed by any such order is issued, to obtain the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (lifting thereof at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceearliest reasonable time.
Appears in 2 contracts
Sources: Investor Rights Agreement (Research Pharmaceutical Services, Inc.), Investor Rights Agreement (Research Pharmaceutical Services, Inc.)
Registration Procedures. (a) Whenever a Shareholder the Holder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall promptly take all such actions as may be necessary or desirable use commercially reasonable efforts to permit effect the registration and the sale of such Registrable Securities in accordance with the Holder’s intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleshall:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to (A) prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory with respect to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale of the such Registrable Securities as soon as reasonably practicable, but in accordance with the intended method or methods of distribution thereofany event within thirty (30) days, if a Short-Form Registration, and ninety (90) days, if a Long-Form Registration, following the date of a demand for registration pursuant to Section 1(a) or Section 1(b), as applicable, and (B) use its commercially reasonable best efforts to cause such Registration Statement (1) to become effective; effective as soon as practicable, and in any event within thirty (30) days, if the SEC indicates it will not review the Registration Statement, and ninety (90) days, if the SEC indicates it will review the Registration Statement (provided that, in the event the SEC indicates it will review such Registration Statement and the SEC’s response in connection with such review is not received by the Company within thirty (30) days of filing such Registration Statement, such ninety (90) day period shall not file any be tolled until such SEC response is received by the Company), following the date of filing such Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) provided that before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, shall furnish to each Participating Shareholder and one counsel selected by Holders of a majority of the underwriters, if any, Registrable Securities proposed to be included therein copies of all such documents in substantially the form proposed to be filed filed, which documents shall be subject to the review and comment of such counsel) and (including documents incorporated therein by reference), 2) to enable such Participating Shareholders remain effective and in compliance with the underwritersprovisions of the Securities Act for a period of not less than one hundred eighty (180) days in order to permit the disposition of all Registrable Securities (and any other securities, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by referenceapplicable) as may be reasonably requested covered by such Participating Shareholders and Registration Statement during such period in accordance with the managing underwriter intended method(s) of distribution set forth in such Registration Statement or underwriters, if anyuntil such securities have been withdrawn;
(cii) subject respond to paragraph written comments received from the SEC upon a review of any Registration Statement in a timely manner;
(biii) abovepromptly notify each Holder of the effectiveness of each Registration Statement filed hereunder; by 9:30 a.m. (New York time) on the Business Day following such effectiveness, file with the SEC in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement; and prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith, and otherwise take such actions, as may be necessary to keep the such Registration Statement continuously effective for a period until the earlier of not less than ninety (90A) days; cause the Prospectus to be supplemented date as of which each Holder may sell all of the Registrable Securities covered by any required Prospectus supplement, and as so supplemented to be filed such Registration Statement pursuant to Rule 424 144 under the Securities Act; Act without limitation, restriction or condition thereunder, and (B) the date on which all of such Registrable Securities have been disposed of by each Holder, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended methods of disposition by the Participating Shareholders sellers thereof set forth in such Registration Statement or supplement to the ProspectusStatement;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any promptly furnish to each Holder such number of the representations or warranties copies of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statementeach amendment and supplement thereto, the Prospectus or any document incorporated therein by reference prospectus included in order to make the statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the such Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons the Holders may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretoeach Holder;
(iv) prior to the date on which the Registration Statement is declared effectiveif applicable, use its commercially reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, shares covered by such Registrable Securities for offer and sale Registration Statement under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter each Holder shall reasonably requests in writing request and do any and all other acts or and things which may be reasonably necessary or advisable to enable each Holder to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; such Holder (provided that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph, (B) subject itself to taxation in any such jurisdiction or to take any action which would subject it (C) consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction);
(jvi) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities notify each Holder at any time when a prospectus relating thereto is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as Act, of the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) aboveas a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, as expeditiously as possible following the happening of such event, prepare a supplement or post-effective Amendment amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(mvii) without limiting any obligations of the Company under the Purchase Agreement, use its commercially reasonable best efforts to (A) cause all such Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other securities exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriterslisted, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or (B) if such listing is not then permitted, or no similar securities issued by the Company are then so listed, secure a designation and quotation of all of the Registrable Securities covered by each Registration Statement on the OTC Bulletin Board;
(nviii) provide a transfer agent and registrar for all such Registrable SecuritiesSecurities not later than the effective date of such Registration Statement;
(oix) enter into such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as Participating Shareholders the Holders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether (including effecting a stock split or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy combination of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereundershares);
(px) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, Registration Statement and any attorney, accountant or other agent retained by the Participating Shareholders or any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such PersonsRegistration Statement;
(qxi) otherwise use its commercially 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, an earnings statements satisfying statement covering the provisions period of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any at least twelve (12)-month period (i12) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) months beginning with the first month day of the Company's ’s first fiscal full calendar quarter commencing after the effective date of the Registration Statement, which statements earnings statement shall cover said twelve satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, and which requirement will be deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q and 10-K and Current Reports on Form 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(12)-month periodsxii) 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, promptly notify each Holder and use commercially reasonable efforts to promptly obtain the withdrawal of such order;
(xiii) use commercially reasonable efforts to cause such Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Holders thereof to consummate the disposition of such Registrable Securities;
(xiv) permit any Holder who, in the reasonable judgment of the Company upon the advice of counsel, might be deemed to be an underwriter or controlling person of the Company, and, if applicable, any underwriter, a cold comfort letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the Holders of a majority of the Registrable Securities being sold reasonably request (provided that such Registrable Securities constitute at least ten percent (10%) of the securities covered by such Registration Statement); and
(rxv) take cooperate with each Holder and any broker or dealer through which any such other reasonable steps Holder proposes to sell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by such Holder.
(b) Each Holder that are necessary or advisable requested that any Registrable Securities be registered pursuant to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish this Agreement shall deliver to the Company such requisite information with respect to itself and documents regarding the Participating Shareholders and the distribution of the its Registrable Securities as the Company may from time to time reasonably request for inclusion in writing. Each Shareholder agrees thatthe Registration Statement (and the prospectus included therein) in order to comply with all applicable rules and regulations of the SEC, upon and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement furnished by or regarding the Holder or its plan of distribution.
(c) The Holders shall not effect sales of the shares covered by the Registration Statement (i) prior to the withdrawal of any stop order suspending the effectiveness of the Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the registration or qualification of any Registrable Securities included in the Registration Statement for sale in any jurisdiction where such shares had previously been registered or qualified or (ii) after receipt of any facsimile or other written notice from the Company instructing such Holders to suspend sales to permit the Company to correct or update the Registration Statement or prospectus until such Holder receives copies of a supplemented or amended prospectus that corrects the happening of misstatement(s) or omission(s) referred to above and receives notice that any event of the kind described in Section 5(d)(vi) hereof, such Shareholder required post-effective amendment has become effective. Such Holder agrees that it will forthwith immediately discontinue disposition offers and sales of Registrable Securities under the Registration Statement until such Shareholder's receipt of the Holder receives copies of the a supplemented or amended Prospectus contemplated by Section 5(l)prospectus that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective.
(d) Notwithstanding anything herein to the contrary, or until it is advised in writing (the "ADVICE") by the Company that shall have the right to suspend the use of the Prospectus may be resumeda Registration Statement for a period of not greater than forty-five (45) consecutive days and for not more than ninety (90) days in any twelve (12) month period in connection with each Demand Registration (a “Blackout Period”), and has received copies of any additional or supplemental filings which are incorporated by reference if, in the Prospectusgood faith opinion of the Board of Directors of the Company, andafter consultation with counsel, if so directed material, nonpublic information exists, including without limitation the proposed acquisition or divestiture of assets by the Company, each Participating Shareholder will, a strategic alliance or will request the underwriters to, deliver to a financing transaction involving the Company (at or the Company's expense) all copiesexistence of pending material corporate developments, other than permanent file copies then the public disclosure of which would be necessary to cause the Registration Statement to be materially true and to contain no material misstatements or omissions, and in each such Shareholder's possessioncase, where, in the good faith opinion of the Prospectus covering Board of Directors, such Registrable disclosure would be reasonably likely to have a Material Adverse Effect (as defined in the Securities current at Purchase Agreement) on the time Company or on the proposed transaction. The Company shall give the Holders prompt written notice of receipt the commencement of such noticeany Blackout Period. If Upon the conclusion of any Blackout Period, the Company shall give such notice, provide the time periods mentioned in Section 5(c) hereof shall be extended by Holders prompt written notice that the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceRegistration Statement is again available for use.
Appears in 2 contracts
Sources: Registration Rights Agreement (Coliseum Capital Management, LLC), Registration Rights Agreement (Universal Technical Institute Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered (a) In the case of each registration effected by the Company pursuant to this Agreement, the Company shall promptly take all such actions will keep each Holder advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with each registration and as to the intended method or methods of disposition completion thereof, and pursuant thereto the . The Company shall as expeditiously as possible:
(a) with respect agrees to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition effect or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in cause such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for permit the sale of the Registrable Securities covered thereby by the Holders thereof in accordance with the intended method or methods of distribution thereofthereof described in such registration statement. In connection with any registration of any Registrable Securities, the Company shall, as soon as reasonably possible:
(i) prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement registration statement filed to become effective; ;
(ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such registration statement as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such registration statement (provided, however, that the Company shall not file any Registration Statement pursuant be obliged to maintain the effectiveness of the registration statement described in Article 3 or any amendment thereto or any Prospectus or any supplement thereto 2 longer than through the earlier of (including such documents incorporated by referenceA) to seven years from the date hereof or, if earlier, the second anniversary of the date on which the Participating Shareholders or the underwriters, if any, shall reasonably object in light last of the requirements Registrable Securities are issued or issuable as payment under the Note or upon exercise of the Warrant, (B) the date on which the Holder may sell all Registrable Securities then held by the Holder, or which may become issuable as payment under the Note or upon exercise of the Warrant, without restriction by the volume limitations of Rule 144(e) of the Securities Act or (C) such time as all Registrable Securities held by such Holder, or which may become issuable as payment under the Note or upon exercise of the Warrant, have been sold pursuant to a registration statement), and furnish to the holders of the Registrable Securities covered thereby copies of any other applicable laws such supplement or regulationsamendment prior to this being used and/or filed with the Commission;
(biii) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents promptly notify the Holders of Registrable Securities to be incorporated by reference therein, except included in the case of the preparation of the initial Registration Statement)a registration statement hereunder, the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriterssales or placement agent, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders therefor and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with of the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplementsecurities being sold, 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 Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (iA) when such registration statement or the Prospectus prospectus included therein or any Prospectus prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to the Registration Statement such registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iiiB) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement such registration statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vC) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposepurpose or (D) if, and (vi) of to the occurrence of Company’s knowledge, it shall be the case, at any event which makes any time when a prospectus is required to be delivered under the Securities Act, that such registration statement made in the Registration Statementor prospectus, 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 any of the foregoing, 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 misleadingmisleading in light of the circumstances then existing;
(eiv) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement such registration statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment theretothereto or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction at the earliest practicable date;
(v) furnish to each Holder of Registrable Securities to be included in such registration statement hereunder, including financial statements each placement or sales agent, if any, therefor and scheduleseach underwriter, all documents incorporated therein by reference if any, thereof a conformed copy of such registration statement, each such amendment and supplement thereto (in each case excluding all exhibits (including those and documents incorporated by reference) and a reasonable such number of conformed copies of all the registration statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such documents;
holder, agent or underwriter, as the case may be) of the prospectus included in such registration statement (h) deliver to including each preliminary prospectus and any summary prospectus), in conformity with the Participating Shareholders and requirements of the underwritersSecurities Act, as such Holder, agent, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwritersunderwriter, if any, may reasonably request in connection with order to facilitate the offering and sale disposition of the Registrable Securities covered owned by such Holder sold by such agent or underwritten by such underwriter and to permit such Holder, agent and underwriter to satisfy the Prospectus or any amendment or supplement theretoprospectus delivery requirements of the Securities Act;
(ivi) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to (A) register or qualify the Registrable Securities to be included in such registration statement under such other securities laws or blue sky laws of such states of the United States or the District of Columbia to be designated by the Holders of a majority of such Registrable Securities participating in such registration and each placement or sales agent, if any, therefor and underwriter, if any, thereof, as any Holder and each underwriter, if any, of the securities being sold shall reasonably request (provided, that the Company shall not be required to use its best efforts to register or qualifyqualify the Registrable Securities in more than 10 such jurisdictions unless the expenses thereof are borne by the Holders requesting such efforts), (B) keep such registrations or qualifications in effect and comply with such laws so as to permit, as to a registration statement filed under Article 2 above, the continuance of offers, sales and dealings therein in such jurisdictions for the same period after the initial effective date of the registration statement filed under the Securities Act as described in Section 5(a)(ii) above or, as to a registration statement filed under Article 3 above, for a period of 90 days after the effective date of the registration statement, or cooperate if underwritten, as long as may be necessary to enable the underwriter to complete its distribution of the Registrable Securities pursuant to such registration statement and (C) take any and all such actions as may be reasonably necessary or advisable to enable such Holder, agent, if any, and underwriter to consummate the disposition in such jurisdictions of such Registrable Securities; provided, however, that in order to fulfill the foregoing obligations under this Section 5(a)(vi), the Company shall not (unless otherwise required to do so in any jurisdiction) be required to (1) qualify generally to do business as a foreign company or a broker-dealer, (2) execute a general consent to service of process or (3) subject itself to taxation; and
(vii) furnish, at the request of a majority of the Holders participating in the registration, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the Participating Shareholders counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale Holders requesting registration of Registrable Securities and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the underwriters;
(k) use its reasonable best efforts Holders requesting registration, addressed to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, and if permitted by applicable accounting standards, to consummate the disposition Holders requesting registration of such Registrable Securities;.
(lb) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each Holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Holder and documents regarding the Participating Shareholders and the such Holder’s method of distribution of the such Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder such Holder agrees that, upon receipt to notify the Company as promptly as practicable of any notice from inaccuracy or change in information previously furnished by such Holder to the Company or of the happening occurrence of any event in either case as a result of which any prospectus relating to such registration contains or would contain an untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omits to state any material fact regarding such Holder or the distribution of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the kind described circumstances then existing, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Holder or the distribution of such Registrable Securities, an untrue statement or a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in Section 5(d)(vilight of the circumstances then existing.
(c) hereof, such Shareholder Each of the Holders will forthwith discontinue comply with the provisions of the Securities Act with respect to disposition of the Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised to be included 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 registration statement filed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Spectre Gaming Inc), Registration Rights Agreement (Spectre Gaming Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration, qualification or compliance effected by the Company pursuant to this Agreement, the Company shall promptly take all such actions will keep each Holder advised in writing as may be necessary or desirable to permit the sale initiation of such Registrable Securities in accordance with each registration, qualification and compliance and as to the intended method or methods of disposition completion thereof, and pursuant thereto . At its expense the Company shall as expeditiously as possiblewill:
(a) with respect prepare and (within thirty (30) days after the end of the period within which requests for registration may be given to the Company or in any event as soon thereafter as possible) (in the case of a request to file a Registration Statement covering Registrable Securities made registration pursuant to Article 3Section 2.1, such filing to be made within thirty (30) days after the initial request of one or more Initiating Holders or in any event as soon thereafter as possible) file with the Commission the requisite registration statement to effect such registration (including such audited financial statements as may be required by the Securities Act) and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective in compliance with the provisions of the Securities Act, provided, 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;
(b) prepare and file with the SEC not later than sixty Commission such amendments and supplements (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material mergerincluding, acquisition or other form of business combination orwithout limitation, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents document incorporated by reference) to which the Participating Shareholders reference or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents deemed to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder such registration statement and the underwriters, if any, copies of all such documents prospectus used in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement;
(c) furnish to each seller of Registrable Securities covered by such registration statement and each Holder and each underwriter or agent, if any, of the securities being sold by such seller such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits and, upon request, all schedules, appendixes and exhibits to any agreement or document included in any such exhibit), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus (or supplement thereto) and any summary prospectus) and any other prospectus (or supplement thereto) filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such seller and underwriter or agent, if any, may reasonably request in order to facilitate the Prospectuspublic sale or other disposition of the Registrable Securities owned by such seller;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale other securities covered by such registration statement under the such other securities laws or blue sky laws of such jurisdictions as any seller thereof and any underwriter or underwriter agent of the securities being sold by such seller and any Holder shall reasonably requests request, to keep such registrations or qualifications in writing effect for so long as such registration statement remains in effect, and do take any and all other acts or things action which may be reasonably necessary or advisable to enable such seller and underwriter or agent to consummate the disposition in such jurisdictions of the Registrable Securities covered securities owned by the Registration Statement; provided that such seller, provided, 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 wherein it is would not then but for the requirements of this paragraph (d) be obligated to be so qualified or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(ke) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lf) notify each seller of Registrable Securities covered by such registration statement and each Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, immediately upon the occurrence happening of any event contemplated by paragraph as a result of which, the prospectus (d)(viincluding any amendment or supplement thereto) aboveincluded in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statement therein not misleading in the light of the circumstances under which they were made, and at the request of any such seller or Holder promptly prepare and furnish to such seller or Initiating Holder and each underwriter or agent, if any, a reasonable number of copies of a supplement to, or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document an amendment of, such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securitiessuch securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made;
(mg) use its reasonable best efforts to provide and cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide maintained a transfer agent and registrar for all Registrable SecuritiesSecurities covered by such registration statement from and after a date not later than the effective date of such registration statement;
(oh) enter into such agreements (including an underwriting agreement) and take use its best efforts to list all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in covered by such connection, whether or not an underwriting agreement is entered into and whether or not registration statement on any securities exchange on which any of the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to class as the compliance of the Registration Statement and the Prospectus with the Registrable Securities Act; (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) addressed to Participating Shareholders and the underwritersare then listed and, if anynot so listed, covering to be listed on the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwritersNASD automated quotation system and, if any; (iii) obtain "comfort" letters and updates thereof from listed on the Company's independent certified public accountantsNASD automated quotation system, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with secure designation of all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at covered by such registration statement as a NASDAQ “national market system security” within the time meaning of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) hereof shall be extended by the number of days during the period from and including the date Rule 11Aa2-1 of the giving of Commission or, failing that, to secure NASDAQ authorization for such notice pursuant to Section 5(d)(vi) to and including Registrable Securities and, without limiting the date when such Participating Shareholder shall have received the copies generality of the supplemented or amended prospectus contemplated by Section 5(l) or foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the AdviceNASD.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (PRN Corp)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered In the case of each registration, qualification or compliance effected by the Company pursuant to this Registration Rights Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit will keep the sale holders of such the Registrable Securities advised in accordance with writing as to the intended method or methods initiation of disposition each registration, qualification and compliance and as to the completion thereof. At its expense, and pursuant thereto the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to 2.5.1 prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up Commission a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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, securities and use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-remain effective amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously effective for a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, anduntil, with respect to the Registration Statement or any post-effective amendmentfiled pursuant to Section 2.1, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable two years after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the such Registration Statement is declared effective, and with respect to any other registration statement filed pursuant to this Registration Rights Agreement, the distribution described in such registration statement has been completed;
2.5.2 provide the holders of the Registrable Securities with a reasonable opportunity to review the registration statement before the filing of the registration statement with the Commission;
2.5.3 with respect to an Underwritten Public Offering, furnish to each underwriter such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such underwriter may reasonably request in order to facilitate the public sale of the shares by such underwriter and promptly furnish to each underwriter and the holders of Registrable Securities notice of any stop-order or similar notice issued by the Commission or any state agency charged with the regulation of securities, and notice of Nasdaq or securities exchange listing;
2.5.4 furnish, without charge, to the each seller of Registrable Securities covered by such registration statement, such number of conformed copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus and, in each case, including all exhibits thereto and documents incorporated by reference therein) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities or other shares of Common Stock owned by such seller;
2.5.5 promptly furnish to each underwriter, if any, and the holders of Registrable Securities notice of any stop-order or similar notice issued by the Commission or any state agency charged with the regulation of securities and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
2.5.6 use its reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale or other shares of Common Stock covered by such registration statement under the such other securities or blue sky laws of such jurisdictions as any seller the holders of the Registrable Securities shall reasonably request, to keep such registration or underwriter reasonably requests qualification in writing effect for so long as such registration statement remains in effect and to do any and all other acts or and things which may be reasonably necessary or advisable to enable the holders of the Registrable Securities to consummate the disposition in such jurisdictions of any such Registrable Securities or other shares of Common Stock owned by the holders of the Registrable Securities covered by the Registration StatementSecurities; provided PROVIDED, HOWEVER, that the Company will shall not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this Section 2.5.6, (ii) subject itself to taxation in any such jurisdiction or to take any action which would subject it (iii) consent to general service of process or taxes in any such jurisdiction where it is not then so subject; providedjurisdiction;
2.5.7 notify each holder of Registrable Securities, further, that the Company will not be required at a time when a prospectus relating to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale Act, of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) aboveknown to the Company as a result of which the prospectus included in such registration statement, as then in effect, contains an untrue statement of a material fact or omits to state any 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; and, at the request of any holder of Registrable Securities, the Company shall prepare and furnish such holder a reasonable number of copies of a supplement to or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(m) use its reasonable best efforts to cause all Registrable Securities covered by 2.5.8 during the Registration Statement period when the prospectus is required to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with delivered under the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters promptly file all documents required to be in customary form and covering matters of filed with the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified Commission pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwritersSections 12(a), if any13(c), to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement 14 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;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods"); and
(r) take such other reasonable steps that are necessary or advisable to permit 2.5.9 on the sale prior written request of such any holder of Registrable Securities. The Company , file such prospectus supplements or post-effective amendments to any registration statement filed pursuant to Article II hereof as may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution be required in connection with any transfer of the Registrable Securities rights under this Registration Rights Agreement by such holder as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in permitted under Section 5(d)(vi) 2.9 hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Reimbursement Agreement (Industrial Holdings Inc), Reimbursement Agreement (Industrial Holdings Inc)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Securities be registered pursuant to this AgreementSecurities, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possiblepracticable:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3registration under Section 2.2 or 2.3, use its reasonable best efforts to prepare cause a registration statement that registers such Registrable Securities to become and file with the SEC not later than sixty (60) remain effective for a period of 90 days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time or until all of such request the Company is engaged in negotiations in anticipation Registrable Securities have been disposed of its participation in (if earlier);
(b) furnish, at least five business days before filing a material mergerregistration statement that registers such Registrable Securities, acquisition a prospectus relating thereto or other form of business combination orany amendments or supplements relating to such a registration statement or prospectus, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participatingHolder, or electing to participate, in such registration of any counsel to any Holder selling Registrable Securities (the "PARTICIPATING SHAREHOLDERSELLING HOLDER") a certificate signed and to one counsel selected by the president or holders of a vice president majority of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement"SELLING HOLDERS' COUNSEL"), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents proposed to be filed, and such other documents as they may reasonably request in substantially order to facilitate the form disposition of Registrable Securities owned by such Holders (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed (including documents incorporated therein so long as such successive drafts are supplied to such counsel in advance of the proposed filing by referencea period of time that is customary and reasonable under the circumstances), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for at least the period set forth in Section 2.7(a) in the case of a registration under Section 2.2 or 2.3 or the period specified in Section 2.1(b) or until all of not less than ninety such Registrable Securities have been disposed of (90if earlier) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the ProspectusRegistrable Securities;
(d) notify the Participating Shareholders in writing any counsel to any Selling Holder and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, Selling Holders' Counsel promptly (i) when of the Prospectus or receipt by the Company of any Prospectus supplement or post-effective amendment has been filed, and, notification with respect to any comments by the Registration Statement Commission with respect to such registration statement or prospectus or any post-effective amendment, when amendment or supplement thereto or any request by the same has become effectiveCommission for the amending or supplementing thereof or for additional information with respect thereto, (ii) of any request the receipt by the SEC for amendments or supplements Company of any notification with respect to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceedings proceeding for that purpose, purpose and (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (viii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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 misleadingpurposes;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 such jurisdictions as any seller or underwriter of Registrable Securities reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch seller; provided PROVIDED, HOWEVER, that the Company will not be required to qualify generally to do business business, subject itself to general taxation or consent to general service of process in any jurisdiction where it is would not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not otherwise be required so to qualify do but for this paragraph (e);
(f) furnish to each seller of such Registrable Securities such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in any jurisdiction conformity with the requirements of the Securities Act, and such other documents as such Holder may reasonably request in which order to facilitate the securities regulatory authority requires that the Participating Shareholders submit any shares public sale or other disposition of its such Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do soSecurities;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kg) use its reasonable best efforts to cause the such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lh) upon notify on a timely basis each seller of such Registrable Securities at any time when a prospectus relating to such Registrable Securities is required to be delivered under the occurrence Securities Act within the appropriate period mentioned in paragraph (a) of this Section, of the happening of any event contemplated by paragraph (d)(vi) aboveas a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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 such seller, prepare and furnish to such seller a reasonable number of copies of a supplement to or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers offerees of the Registrable Securitiessuch shares, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by any counsel to any Selling Holder and the Participating Shareholders, Selling Holders' Counsel or any underwriter participating in any disposition pursuant to such registration statement, statement and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriterunderwriter (collectively, the "INSPECTORS"), all pertinent financial and other records, pertinent corporate documents and properties of the CompanyCompany (collectively, the "RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information (together with the Records, the "INFORMATION") reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent Inspector in connection with such registration statement; provided that any records. Any of the Information which the Company determines in good faith to be confidential, information or documents that and of which determination the Inspectors are designated so notified, shall not be disclosed by the Inspectors unless (i) the disclosure of such Information is necessary to avoid or correct a misstatement or omission in the registration statement, (ii) the release of such Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) such Information has been made generally available to the public. The seller of Registrable Securities agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Information deemed confidential;
(j) in writing as confidential connection with any underwritten offering, use its best efforts to obtain from its independent certified public accountants "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(k) in connection with any underwritten offering, use its best efforts to obtain from its counsel an opinion or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Securities;
(m) issue to any underwriter to which any seller of Registrable Securities may sell shares in such offering certificates evidencing such Registrable Securities;
(n) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Subject to the provisions of this agreement, each Holder participating in such underwriting shall be kept confidential by also enter into and perform its obligations under such Personsan agreement.
(o) remain current in its Commission reporting obligations and use its best efforts to remain eligible to file with the Commission on a Form S-3 registration statement for a secondary offering;
(p) list such Registrable Securities on any national securities exchange on which any shares of the Common Stock are listed or on NASDAQ if then included, or if the Common Stock is not listed on NASDAQ or any other United States national securities exchange, use its best efforts to qualify such Registrable Securities for trading on the OTC Bulletin Board, "pink sheets" or such other trading market for the Company's Securities;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsCommission; and
(r) use its best efforts to take such all other reasonable steps that are necessary or advisable to permit effect the sale registration of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advicehereby.
Appears in 2 contracts
Sources: Note Purchase Agreement (Serviceware Technologies Inc/ Pa), Registration Rights Agreement (Serviceware Technologies Inc/ Pa)
Registration Procedures. Whenever a Shareholder has requested that If and whenever (a) the Company is required to use its best efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Sections 2 and 3 or (b) there is a Requesting Holder in connection with any other proposed registration by the Company under the Securities Act, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall will as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty Commission the requisite registration statement (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up Securities Act or the rules and regulations promulgated thereunder) to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in effect such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) provided that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities whose Registrable Securities are to be included in such registration copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference)will be subject to the review of such counsel, to enable such Participating Shareholders and provided, further, that the underwriters, if any, to review such documents Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the filing thereof, and effective date of the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyregistration statement relating thereto;
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep maintain the Registration Statement continuously effective for a period effectiveness of not less than ninety (90) days; cause the Prospectus such registration statement and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of (A) such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement and (B) the expiration of 120 days after such registration statement becomes effective, except with respect to any such registration statement filed pursuant to Rule 415 (or supplement to any successor Rule) under the ProspectusSecurities Act, in which case such period shall be 2 years;
(d) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) furnish to each seller of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for covered by such purpose, and (vi) of the occurrence of any event which makes any registration 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable Requesting Holder such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many number of copies of the Prospectus prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any amendment or supplement thereto 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 Persons seller may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(iiv) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale other securities covered by such registration statement under the such other securities or blue sky laws of such jurisdictions as each seller thereof and each Requesting Holder shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any seller or underwriter other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered securities 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 wherein it is would not then but for the requirements of this subdivision (iv) be obligated to be so qualified or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kv) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lvi) upon the occurrence furnish to each seller of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in each Requesting Holder a signed counterpart, addressed to such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration seller (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.of
Appears in 2 contracts
Sources: Note and Warrant Purchase Agreement (General Housing Inc), Securities Purchase Agreement (General Housing Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered If and whenever the Company is required pursuant to this AgreementAgreement to effect the registration of any of the Registrable Securities under the Securities Act, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofwill, and pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement, on a form available to the Company, with respect to such securities (which filing shall be made (i) as promptly as possible (but in no event later than 30 days after the receipt by the Company of a request Request Notice) in the case of a shelf registration if the Company is then eligible to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not on Form S-3 or (ii) as promptly as possible (but in no event later than sixty (60) 60 days after the receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60of a Request Notice) days in the case of any underwritten offering or if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position eligible to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which Form S-3, provided that in no event will the Company then qualifies which is satisfactory be obligated to file a Registration Statement pursuant to (i) or (ii) prior to the Funding Date pursuant to the Securities Purchase Agreement. The Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereafter use its reasonable best efforts to cause such Registration Statement to become effective; and remain effective for the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light period of the requirements of the Securities Act or any other applicable laws or regulationsdistribution in order for it to be Counted;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective for a the distribution period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, Counted and as so supplemented may be necessary to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the Holders intended methods method of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectusdisposition;
(dc) notify the Participating Shareholders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders each Selling Holder and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy underwriter such number of copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated the prospectus included therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectusprospectus and each document incorporated by reference therein to the extent then required by the rules and regulations of the Commission) and any amendment or supplement thereto as such Persons may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus public sale or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale other disposition of the Registrable Securities covered by the Prospectus or any amendment or supplement theretosuch Registration Statement;
(id) prior to the date on which the Registration Statement is declared effectiveif applicable, use its reasonable best efforts to register or qualify, or cooperate with qualify the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale covered by such Registration Statement under the securities or blue sky laws of such jurisdictions as any seller or underwriter the Selling Holders or, in the case of an underwritten public offering, the managing underwriter, shall reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; request, provided that the Company will not be required to qualify generally to do transact business in any jurisdiction where it is not then required to so qualified qualify or to take any action which that would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(je) cooperate with the Participating Shareholders immediately notify each Selling Holder and the managing underwriterseach underwriter, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities at any time when a prospectus relating thereto is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as Act, of the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence happening of any event contemplated by paragraph (d)(vi) above, prepare as a supplement or post-effective Amendment to result of which the prospectus contained in such Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so thatStatement, as thereafter delivered 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 purchasers statements therein not misleading in the light of the Registrable Securities, circumstances then existing and as promptly as practicable amend or supplement the Prospectus will prospectus or take other appropriate action so that the prospectus does not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(mf) use its reasonable best efforts to cause all Registrable Securities covered by in the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition case 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 public offering, furnish upon request, (i) make such representations and warranties on the date that Registrable Securities are delivered to the Participating Shareholders underwriters for sale pursuant to such Registration Statement, an opinion of counsel for the Company dated as of such date and addressed to the underwriters and to the Selling Holders, stating that such Registration Statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations thereunder of the Commission (except that such counsel need express no opinion as to the financial statements, or any expertized schedule, report or information contained or incorporated therein) and (C) to such other effects as may reasonably be requested by counsel for the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up periodii) and confirm on the accuracy of the same if and when requested, and matters relating to the compliance effective date of the Registration Statement and on the Prospectus with the date that Registrable Securities Act; (ii) obtain opinions of counsel are delivered to the Companyunderwriters for sale pursuant to such Registration Statement, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to a letter dated such dates from the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested independent accountants retained by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders underwriters and, if available, to the Selling Holders, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company and the underwritersschedules thereto that are included or incorporated by reference in the Registration Statement or the prospectus, if anyor any amendment or supplement thereof, such letters comply as to be form in customary form and covering matters all material respects with the applicable requirements of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders Securities Act and the managing underwriterspublished rules and regulations thereunder, if any, and such letter shall additionally address such other financial matters (including information as to evidence compliance with clause (ithe period ending no more than five business days prior to the date of such letter) above and with any customary conditions contained included in the underwriting agreement or other agreement entered into by Registration Statement in respect of which such letter is being given as the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderunderwriters may reasonably request;
(pg) make available for inspection during normal business hours by the Participating ShareholdersSelling Holders designated by a majority thereof, any underwriter participating in any disposition distribution pursuant to such registration statementRegistration Statement, and any attorney, accountant or other agent retained by such representative of the Participating Shareholders Selling Holders or any such underwriterunderwriter (the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the CompanyCompany (collectively, the "Records"), and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent Inspector in connection with such registration statement; provided that any recordsRegistration Statement.
(h) cause the Registerable Securities to be listed on New York Stock Exchange, information American Stock Exchange or documents that are designated by on the Company in writing as confidential shall be kept confidential by such PersonsNASDAQ National Market if the Common Stock is or becomes so listed;
(qi) otherwise use its reasonable best efforts to keep effective and maintain for the period of distribution to be Counted, qualification, approval or listing obtained to cover the Registrable Securities as may be necessary for the Selling Holders to dispose thereof and shall from time to time amend or supplement any prospectus used in connection therewith to the extent necessary in order to comply with all applicable rules and regulations law;
(j) use best efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the SEC, business and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) operations of the Securities Act, no later than forty-five (45) days after Company to enable the end Selling Holders to consummate the disposition of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which such Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsSecurities; and
(rk) take such other reasonable steps that actions as are necessary reasonably requested by the Selling Holders or advisable the underwriters, if any, in order to permit expedite, facilitate or consummate the sale disposition of such Registrable Securities. The In connection with each registration hereunder with respect to an underwritten public offering, the Company may require and each Selling Holder agrees to enter into a written agreement with the Participating Shareholders to furnish managing underwriter or underwriters selected in the manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between underwriters and companies of the Company's size and investment stature, provided that such agreement shall not contain any such provision applicable to the Company such information or the Selling Holders that is inconsistent with the provisions hereof; and documents regarding further provided, that the Participating Shareholders time and the distribution place of the Registrable Securities closing under said agreement shall be as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, mutually agreed upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by among the Company, the Selling Holders and such managing underwriter. In connection with each Participating Shareholder willregistration hereunder, or each Selling Holder will request the underwriters to, deliver furnish promptly to the Company (at in writing such information with respect to itself and the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) hereof proposed distribution by it as shall be extended by the number of days during the period from necessary in order to ensure compliance with federal and including the date of the giving of such notice pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceapplicable state securities laws.
Appears in 2 contracts
Sources: Registration Rights Agreement (Brigham Holdings Ii LLC), Registration Rights Agreement (Enron Capital & Trade Resources Corp)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is ----------------------- required to use its best efforts to effect or cause the registration of any Registrable Securities be registered pursuant to under the Securities Act as provided in this Agreement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofwill, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to prepare and, in any event within 120 days after the end of the period within which a request for registration may be given to file a Registration Statement covering Registrable Securities made pursuant to Article 3the Company, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up a registration statement with respect to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement registration statement to become effective; provided, however, that the Company shall not file may discontinue any Registration Statement registration of its securities which is being effected pursuant to Article Section 3 or at any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) time prior to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulationsregistration statement relating thereto;
(bii) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period not in excess of not less than ninety (90) days; cause the Prospectus 180 days and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement; provided, that before filing a registration statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwritersprospectus, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements thereto, the Company will furnish to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance one counsel selected by the SEC Holders of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale majority of the Registrable Securities covered by such registration statement to represent all Holders of Registrable Securities covered by such registration statement, copies of all documents proposed to be filed, which documents will be subject to the Prospectus or any amendment or supplement theretoreview of such counsel;
(iiii) prior 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 date on which prospectus included in such registration statement (including each preliminary prospectus and summary prospectus), in conformity with the Registration Statement is declared effectiverequirements of the Securities Act, and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities by such seller;
(iv) use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 laws of such jurisdictions as any each seller or underwriter shall reasonably requests in writing request, and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such seller, except that the Company will shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this clause (iv), it is would not then be obligated to be so qualified qualified, to subject itself to taxation in any such jurisdiction, or to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kv) use its reasonable best efforts to cause the such Registrable Securities covered by the Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lvi) upon the occurrence notify each seller of any event contemplated such Registrable Securities covered by paragraph such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in clause (d)(viii) aboveof this Section 5, of the Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of any such seller, prepare and furnish to such seller a supplement reasonable number of copies of an amended or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document supplemented prospectus as may be necessary so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(mvii) 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 not more than eighteen months) after the effective date of the registration statement, an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
(viii) use its reasonable best efforts to cause all list such Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other any securities exchange on which similar securities issued by the Company are Common Stock is then listed if requested by Shareholder or the managing underwriterslisted, if any;
(n) 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 SecuritiesSecurities covered by such registration statement not later than the effective date of such registration statement;
(oix) enter into such customary agreements (including an underwriting agreementagreement in customary form) and take all such other actions in connection therewith as Participating Shareholders sellers of a majority of such Registrable Securities or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Securities;
(i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (iix) 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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain a "cold comfort" letter or letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be accountants in customary form and covering matters of the type customarily covered in by "cold comfort" letters by underwriters in connection with primary underwritten offeringsas the seller or sellers of a majority of such Registrable Securities shall reasonably request; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;and
(pxi) make available for inspection during normal business hours by the Participating Shareholdersany seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement, statement and by any attorney, accountant or other agent retained by the Participating Shareholders any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders each seller of Registrable Securities as to which any registration is being effected to furnish the Company with such information regarding such seller and pertinent to the Company such information and documents regarding disclosure requirements relating to the Participating Shareholders registration and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder Holder of Registrable Securities agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in clause (vi) of this Section 5(d)(vi) hereof5, such Shareholder Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such ShareholderHolder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (vi) of this Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus5, and, if so directed by the Company, each Participating Shareholder will, or such Holder will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such ShareholderHolder's possession, of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such notice. If In the event the Company shall give any such notice, the time periods period mentioned in clause (ii) of this Section 5(c) hereof 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 (vi) of this Section 5(d)(vi) to 5 and including the date when each seller of Registrable Securities covered by such Participating Shareholder registration statement shall have received the copies of the supplemented or amended prospectus contemplated by clause (vi) of this Section 5(l) or the Advice5.
Appears in 2 contracts
Sources: Contribution Agreement (Red Lion Hotels Inc), Registration Rights Agreement (Red Lion Hotels Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this Agreement, If and whenever the Company shall promptly take all such actions as may be necessary or desirable is ----------------------- required by the provisions of this Agreement to permit the sale effect a registration of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleSecurities:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, The Company will use its commercially reasonable best efforts to prepare and file with the SEC not later than sixty SEC, within the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (60or on such other registration form available to the Company that permits the greatest extent of incorporation by reference of materials filed by the Company, under the Exchange Act) and will use commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable thereafter and to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 180 days after receipt such Registration Statement becomes effective, in the case of registrations pursuant to Section 2, or (2) 90 days after such Registration Statement becomes effective, in the relevant Demand Request (which sixty (60) day case of registrations pursuant to Section 3, in every case as any such period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 subsection (h) or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;Section 8.
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the The Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, will prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective for a such period of not less than ninety time required by subsection (90) days; cause the Prospectus to a), as such period may be supplemented by any required Prospectus supplement, and as so supplemented to be filed extended pursuant to Rule 424 under the Securities Act; and subsection (h) or Section 8.
(c) The Company will comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in during which any such Registration Statement or supplement is required to the Prospectus;be effective.
(d) notify The Company will furnish to any Holder and any underwriter of Registrable Securities (1) such number of copies (including manually executed and conformed copies) of such Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of the Participating Shareholders prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and the managing underwritersfinal prospectus and including prospectus supplements), and (3) such number of copies of other documents, in each case as the Holder or such underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to register or qualify all Registrable Securities covered by such Registration Statement under the securities or "blue sky" laws of states of the United States and any other jurisdiction as any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; but the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject.
(f) The Company will use, as soon as practicable after the effectiveness of the Registration Statement, commercially reasonable efforts to cause the Registrable Securities covered by such Registration Statement to be registered with, or approved by, such other United States and Cayman Islands public, governmental or regulatory authorities, if any, promptlyas may be required in connection with the disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, and the Nasdaq National Market System) on which any securities of the Company are then listed, if the listing of such Registrable Securities is then permitted under the applicable rules of such exchange (or if applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable and, if requested by any such Person) Holder, confirm such advice notification in writing, (i1) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment thereto has been filed with and declared effective by the same has become effectiveSEC, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii2) of the issuance by the SEC of any stop order suspending or the effectiveness coming to its knowledge of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v3) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi4) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the a Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of related prospectus so that such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder 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 to make the statements therein, in light of the circumstances under which they are made, not misleading;
), and (m5) use its reasonable best efforts of the Company's determination that the filing of a post-effective amendment to cause all a Registration Statement is necessary or appropriate. Upon the receipt of any notice from the Company of the occurrence of any event of the kind described in clause (4), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities covered by pursuant to the Registration Statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be listed on the Nasdaq National Market and each other exchange on which similar securities issued effective shall be extended by the Company are then listed if requested by Shareholder or number of days from and including the managing underwritersdate such notice is provided, if any;to and including the date when the Holders shall have received copies of the corrected prospectus.
(ni) provide a transfer agent and registrar for all Registrable Securities;
(o) The Company will enter into such agreements (including an underwriting agreement) and take all such other appropriate actions in connection therewith as Participating Shareholders or the managing underwriters, if any, are customary and reasonably request in order necessary 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement making its management available to not sell equity securities during a customary lock-up period) and confirm the accuracy of extent reasonably requested by the same if and when requestedHolders to participate in marketing presentations to potential investors in connection with any underwritten offering), and matters relating in that regard, will deliver to the compliance of the Registration Statement Holders such documents and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters certificates as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters Holders of a majority of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered intoRegistrable Securities being sold or, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and applicable, the managing underwriters, if any, to evidence the Company's compliance with clause (i) above and with any customary conditions contained this Agreement, including, 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 case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the extent required thereunder;
(p) make available for inspection during normal business hours by managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorneyor if such letter can not be obtained through the exercise of commercially reasonable efforts, accountant or other agent retained by cause its independent accountants to deliver to the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders financial statements included or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (registration statement at the Company's expense) all copies, other than permanent file copies highest level permitted to be given by such accountants under the then in such Shareholder's possession, applicable standards of the Prospectus covering American Institute of Certified Public Accountants with respect to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Scottish Annuity & Life Holdings LTD), Registration Rights Agreement (Scottish Annuity & Life Holdings LTD)
Registration Procedures. Whenever a Shareholder has requested that any If and whenever the Company is required to register Registrable Securities be registered pursuant to this AgreementSecurities, the Company shall promptly take all will use its reasonable best efforts to effect such actions as may be necessary or desirable registration to permit the sale of such Registrable Securities in accordance with the Holders, intended method or methods plan of disposition thereofdistribution thereof (as communicated in writing to the Company), and pursuant thereto the Company shall will as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to (i) (A) prepare and file with the SEC not later than sixty as soon as practicable (60) and in any event, subject to the last paragraph of this Section 2, within 45 days after receipt of the relevant Demand Request (which sixty (60any written request made pursuant to Section 1(a)) day period may be extended by the Company for up to an additional sixty (60) days a Form S-3 Registration Statement, or a Form S-1 Registration Statement if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not then eligible to use Form S-3 (or in a position the last case the successor form), with respect to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto effective as soon as possible and remain continuously effective and (including such documents incorporated by referenceB) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement Statement, and such supplements to the related prospectus, as may be necessary reasonably requested by the Holders or any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement continuously effective for a period effective, in the case of not less than ninety either foregoing clause (90A) days; cause the Prospectus to be supplemented by any required Prospectus supplementor foregoing clause (B), and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions until all of the Registrable Securities Act with respect to the disposition of all securities covered by such Registration Statement during have been sold under the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth Registration Statement or cease to be Registrable Securities, (ii) include in such Registration Statement or and/or Prospectus (as the case may be) the names of the Holders who have delivered written notice, and a duly completed selling stockholder questionnaire (in the form provided by the Company) to the Company at least five business days prior to the date that the Registration Statement is first declared effective, that they propose to include Registrable Securities in the Registration Statement as selling securityholders, and (iii) file pursuant to Rule 424(b) under the Securities Act a supplement to the Prospectus;
(d) notify prospectus contained in the Participating Shareholders and the managing underwritersregistration Statement or, if anyrequired, promptly, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or file a post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, in each case, to cover new Holders of Registrable Securities upon at least seven business days prior written notice by such new Holders to such effect and the Prospectus or any document incorporated therein delivery by reference untrue or which requires the making such new Holders of any changes duly completed selling stockholder questionnaires (in the Registration Statement, form provided by the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;Company).
(eb) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;[reserved]
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(hc) deliver to the Participating Shareholders Holders and the underwriters, if any, without charge, as many copies of the Prospectus each prospectus (including and each preliminary prospectus) and any amendment amendments or supplement supplements thereto as such Persons may reasonably request; request (the Company consents hereby consenting to the use of the Prospectus each such prospectus (or any amendment or supplement thereto preliminary prospectus) by the Participating Shareholders Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus such prospectus (or any amendment or supplement thereto;preliminary prospectus).
(id) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, qualify or cooperate with the Participating Shareholders and Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller the Holders or underwriter reasonably requests underwriters may designate in writing and do any and all other acts or things anything else necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, .
(e) The Company shall give written notice to the Holders of the Registrable Securities included within the coverage of the Registration Statement (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has been filed with the SEC and when the Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company will not be required or its legal counsel of any notification with respect to qualify such Registrable the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in which the securities regulatory authority requires Registration Statement or the prospectus in order that the Participating Shareholders submit Registration Statement or the prospectus do not contain an untrue statement of a material fact nor 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.
(f) The Company shall make every reasonable effort to obtain the withdrawal, at the earliest possible time, of any shares order suspending the effectiveness of its the Registration Statement.
(g) The Company shall furnish to each Holder of Registrable Securities to included within the termscoverage of the Registration Statement, provisions without charge, if the Holder so requests in writing, at least one copy of the Registration Statement and restrictions of any escrowpost-effective amendment thereto, lock-up or similar agreement(s) for consent to sell Registrable Securities in including, but only if expressly requested by such jurisdiction unless the Participating Shareholders agrees to do so;
Holder, financial statements and schedules and all exhibits thereto (j) cooperate with the Participating Shareholders and the managing underwritersincluding those, if any, incorporated by reference).
(h) The Company shall cooperate with the Holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates (if any) representing the Registrable Securities to be sold and not bearing pursuant to the Registration Statement free of any restrictive legends; legends and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters Holders may request at least two (2) Business Days a reasonable period of time prior to any sale sales of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by pursuant to the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;Statement.
(li) upon Upon the occurrence of any event contemplated by paragraph paragraphs (d)(viii) through (v) of Section 2(e) above, the Company shall promptly prepare and file a supplement or post-effective Amendment amendment to the Registration Statement or a supplement to the Prospectus or any document incorporated therein by reference or file related prospectus and any other required document so that, as thereafter delivered to Holders of the Registrable Securities or purchasers of the Registrable Securities, the Prospectus prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(m) use its reasonable best efforts to cause all . If the Company notifies the Holders of Registrable Securities covered by included within the coverage of the Registration Statement to be listed on suspend the Nasdaq National Market use of the prospectus as a result of any of the events described in paragraphs (ii) through (v) of Section 2(e) above, until (A) the requisite changes to the prospectus have been made and each other exchange on which similar securities issued the Holders have received copies of a supplemented or amended prospectus or (B) the Holders have been advised in writing by the Company are then listed if requested by Shareholder or that the managing underwritersuse of the prospectus may be resumed, if any;the Holders shall suspend use of such prospectus.
(nj) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition The Company may require each Holder of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers be sold pursuant to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (ii) obtain opinions of counsel to furnish to the Company, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory pursuant to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if anya questionnaire or otherwise, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders Holder and the distribution of the Registrable Securities as the Company may from time to time reasonably request require for inclusion in writing. Each Shareholder agrees thatthe Registration Statement, upon receipt and the Company may exclude from such registration the Registrable Securities of any notice from Holder that fails to furnish such information within the applicable time period specified in this Agreement.
(k) In the case of any registration, the Company shall (i) make reasonably available for inspection by the Holders of the happening Registrable Securities, any underwriter participating in any disposition pursuant to the Registration Statement and any attorney, accountant or other agent retained by the Holders of the Registrable Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of the Registrable Securities or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as shall be reasonably necessary to enable such persons, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of Holders by the Investor or by one counsel designated by the Holders.
(l) In the case of any event of registration, the kind described in Section 5(d)(vi) hereofCompany, such Shareholder will forthwith discontinue disposition if requested by any Holder of Registrable Securities until such Shareholder's receipt covered thereby in connection with an underwritten offering of the copies Registrable Securities pursuant to the Registration Statement, shall cause (i) its counsel (which may include the Company’s general counsel and/or the Company’s outside counsel) to deliver an opinion or opinions and updates thereto relating to the Registrable Securities in customary form addressed to the underwriters thereof and dated, in the case of the supplemented or amended Prospectus contemplated initial opinion, the effective date of such Registration Statement (it being agreed that the matters to be covered by Section 5(l)such opinion shall include, or until it is advised in writing (without limitation, the "ADVICE") by due incorporation and good standing of the Company that and its subsidiaries; the use qualification of the Prospectus may be resumedCompany and its subsidiaries to transact business as foreign corporations; the due authorization, execution and delivery of the relevant underwriting agreement; the due authorization, execution, authentication and issuance, and has received copies the validity and enforceability, of the Registrable Securities; the absence of material legal or governmental proceedings involving the Company and its subsidiaries; the absence of governmental approvals required to be obtained in connection with the Registration Statement, the offering and sale of the Registrable Securities; the compliance as to form of such Registration Statement and any additional or supplemental filings which are documents incorporated by reference in therein with the Prospectus, requirements of the Securities Act and the Exchange Act; and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, as of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) hereof shall be extended by the number of days during the period from and including the date of the giving opinion and as of the effective date of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from such Registration Statement and the prospectus included therein, as then amended or supplemented, and from any documents incorporated by reference therein of an untrue statement of a material fact or the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any such documents, in the light of the circumstances existing at the time that such documents were filed with the Commission under the Exchange Act); (ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the Registrable Securities and (iii) its independent public accountants to provide to the underwriter(s) of the Registrable Securities a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(m) The Company shall use its reasonable best efforts to cause the Common Stock included in such Registration Statement to be, upon resale thereunder, listed on each U.S. securities exchange or national quotation system, if any, on which any shares of Common Stock are then listed. Notwithstanding the undertakings in this Section 2, in the event the Board of Directors of the Company in good faith determines that significant corporate developments preclude the filing of a Registration Statement or its being declared effective, the Company may delay the filing or effectiveness of such notice pursuant Registration Statement for a period not to Section 5(d)(vi) to and including exceed 30 days from the date when of such Participating Shareholder shall have received the copies request, after giving notice to any Holder of the supplemented or amended prospectus contemplated Registrable Securities to be covered by Section 5(l) or the Advicesuch Registration Statement.
Appears in 2 contracts
Sources: Investor Rights Agreement (Transmeridian Exploration Inc), Investor Rights Agreement (Transmeridian Exploration Inc)
Registration Procedures. Whenever a Shareholder has requested that (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act as provided in Section 4.01, Section 4.02 and Section 4.03, the Company shall as promptly take all such actions as may be necessary or desirable practicable (in each case, to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:extent applicable):
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 thereofCommission, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effectiveremain effective pursuant to the terms of this Agreement; provided, however, that the Company shall may discontinue any registration of its securities which are not file Registrable Securities at any Registration Statement pursuant time prior to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light effective date of the requirements of the Securities Act or any other applicable laws or regulations;
(b) registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if any, counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents in substantially the form proposed to be filed (including filed, which documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior will be subject to the filing thereof, review of and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested comment by such Participating Shareholders counsel (it being understood that counsel to the Selling Holders will conduct its review and the managing underwriter or underwriters, if anyprovide any comments promptly);
(cii) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to such registration statement and the Registration Statement prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration Statement pursuant to Section 4.01, the expiration of 60 days after such registration statement becomes effective or supplement (ii) in the case of a Piggyback Registration pursuant to Section 4.02, the Prospectusexpiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.03, the Shelf Registration Effectiveness Period;
(diii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 Holder;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling 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 wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify the Participating Shareholders in writing each Selling Holder and the managing underwriters, if any, promptlyof the following events:
(A) the filing of the registration statement, and (if requested by any such Person) confirm such advice in writing, (i) when the Prospectus prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus supplement or post-effective amendment has been filedto the registration statement, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iiB) of any request by the SEC Commission for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for additional information, ;
(iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings by any Person for that purpose, ;
(ivD) if at when any time any of Issuer Free Writing Prospectus includes information that may conflict with the representations or warranties of information contained in the Company contemplated by paragraph registration statement; and
(oE) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(x) notify each Selling Holder, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires necessary to make the making statements therein not misleading, and, at the request of any changes in Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(exi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch registration statement;
(fxii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable after filing practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing first day of the Registration Statement), provide copies Company’s first full quarter after the effective date of such document to counsel to registration statement, which earnings statement shall satisfy the Participating Shareholders provisions of Section 11(a) of the Securities Act and to the managing underwritersRule 158 thereunder;
(gxiii) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualifyassist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, or cooperate with the Participating Shareholders and the underwritershowever, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any serve as such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so“market maker”;
(jxiv) cooperate with the Participating Shareholders any Selling Holder and any underwriter and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such Selling Holder may request at least two (2) Business Days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates as necessary or appropriate;
(kxv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cause the Registrable Securities covered cooperate as reasonably requested by the Registration Statement to be registered with Selling Holders and the underwriters in the offering, marketing or approved by such other governmental agencies or authorities within selling of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lxvi) upon have appropriate officers of the occurrence Company, and cause representatives of the Company’s independent registered public accountants, to participate in any event contemplated due diligence discussions reasonably requested by paragraph any Selling Holder or any underwriter;
(d)(vixvii) aboveif requested by any underwriter, prepare agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective Amendment amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers “Plan of Distribution” 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(oxix) enter into such agreements (including an underwriting agreement) cooperate and take all such other actions assist in connection therewith as Participating Shareholders or any filings required to be made with the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities FINRA and in such connection, whether or not an underwriting agreement the performance of any due diligence investigation by any underwriter that is entered into required to be undertaken in accordance with the rules and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy regulations of the same if and when requested, and matters relating FINRA;
(xx) otherwise use reasonable best efforts to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters cooperate as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders Selling Holders and the underwritersunderwriters in the offering, if any, such letters to be in customary form and covering matters marketing or selling of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunderRegistrable Securities;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qxxi) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings statements satisfying all reporting requirements under the provisions of Section 11(a) rules and regulations of the Securities Exchange Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(rxxii) use reasonable best efforts to take such any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other reasonable steps that are necessary or advisable to permit the proposed sale of such Registrable SecuritiesSecurities over a limited timeframe. The Company may require the Participating Shareholders each Selling Holder and each underwriter, if any, to furnish to the Company in writing such information and documents regarding the Participating Shareholders each Selling Holder or underwriter and the distribution of the such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in writingthe event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an Underwriting Agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Shareholder Selling Holder agrees that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof4.05(a)(ix), such Shareholder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Shareholder's Selling Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l4.05(a)(ix) or and, if so directed by the Advice.Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event the Company sha
Appears in 2 contracts
Sources: Stockholders Agreement (OneMain Holdings, Inc.), Stockholders Agreement (OneMain Holdings, Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever Stratos is required by the provisions of this Agreement to use its best efforts to effect or cause the registration of any Registrable Securities be registered pursuant to under the Securities Act as provided in this Agreement, Stratos shall, as expeditiously as possible:
(a) prepare and file with the Company shall promptly take all such actions as may be necessary or desirable to permit SEC a registration statement on an appropriate registration form of the sale SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which form (i) shall be selected by Stratos and pursuant thereto the Company shall as expeditiously as possible:
(aii) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participateshall, in such registration the case of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basisshelf registration, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be used) and which form shall be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in accordance all material respects with the intended method or methods requirements of distribution thereofthe applicable form and include all financial statements required by the SEC to be filed therewith, and Stratos shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto and remain effective (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersPROVIDED, if anyHOWEVER, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto thereto, or comparable statements under securities or blue sky laws of any jurisdiction, Stratos will furnish to one counsel for the Holders participating in the planned offering (excluding documents to be incorporated selected by reference thereinthe Initiating Holder, except in the case of a registration pursuant to Section 2.1, and selected by the preparation Major Holder, in the case of the initial Registration Statement), the Company shall, at least five (5a registration pursuant to Section 2.2) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by referenceall exhibits thereto), which documents will be subject to enable the reasonable review and reasonable comment of such Participating Shareholders counsel, and Stratos shall not file any registration statement or amendment thereto or any prospectus or supplement thereto to which the Holders of a majority of the Registrable Securities covered by such registration statement or the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyobject in writing);
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for such period (which shall not be required to exceed one hundred eighty (180) days in the case of a period of not less than ninety (90) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed registration pursuant to Rule 424 under Section 2.1 or one hundred twenty (120) days in the case of a registration pursuant to Section 2.2) as any seller of Registrable Securities Act; pursuant to such registration statement shall request and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period registration statement in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement registration statement;
(c) furnish, without charge, to each seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), and the prospectus included in such registration statement (including each preliminary prospectus) in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Stratos hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement to thereto) by each such seller of Registrable Securities and the Prospectusunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) notify use its best efforts to register or qualify the Participating Shareholders and the Registrable Securities covered by such registration statement under such other securities or "blue sky" laws of such jurisdictions as any sellers of Registrable Securities or any managing underwritersunderwriter, if any, promptlyshall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions, except that in no event shall Stratos be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (if requested by d), be required to be so qualified, to subject itself to taxation in any such Personjurisdiction or to consent to general service of process in any such jurisdiction;
(e) confirm promptly notify each Holder selling Registrable Securities covered by such advice in writingregistration statement and each managing underwriter, if any: (i) when the Prospectus registration statement, any pre-effective amendment, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the registration statement has been filed, filed and, with respect to the Registration Statement registration statement or any post-effective amendment, when the same has become effective, ; (ii) of any request by the SEC or state securities authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus related thereto or for additional information, ; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement registration statement or the initiation of any proceedings for that purpose, ; (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company Stratos of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening of any proceeding for such purpose, and ; (viv) of the occurrence existence of any event fact of which makes any statement made Stratos becomes aware which results in the Registration Statementregistration statement, the Prospectus prospectus related thereto or any document incorporated therein by reference containing an untrue statement of a material fact or which requires omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the making representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; AND, if the notification relates to an event described in clause (v), Stratos shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of any changes in copies of a prospectus supplemented or amended so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, the Prospectus such prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(ef) comply with all applicable rules and regulations of the SEC, and make every reasonable effort generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within seventeen (17) months thereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Stratos' first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(i) cause all such Registrable Securities covered by such registration statement to be listed on the principal trading market or securities exchange on which similar securities issued by Stratos are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such trading market or exchange, or
(ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market "national market system security" within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Stratos as the issuer of such Registrable Securities in order to facilitate the managing underwriter's arranging for the registration of at least two market makers as such with respect to such shares with the NASD;
(h) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Holders of a majority of the Registrable Securities or the Major Holder participating in such offering shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities. The Holders of the Registrable Securities that are to be distributed by such underwriters shall be parties to such underwriting agreement and may, at their option, require that Stratos make to and for the benefit of such Holders the representations, warranties and covenants of Stratos that are being made to and for the benefit of such underwriters and that are of the type customarily provided to institutional investors in secondary offerings;
(j) use its best efforts to obtain an opinion from Stratos' counsel and a "cold comfort" letter from Stratos' 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 underwriter, if any, and to the Major Holder participating in such offering, and furnish to each Holder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the offering and each underwriter, if any, copies of all correspondence between the SEC and Stratos, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, other than those portions of any such memoranda which contain information subject to attorney-client privilege with respect to Stratos, and, upon receipt of such confidentiality agreements as Stratos may reasonably request, make reasonably available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter, if any, participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of Stratos, and cause all of Stratos' officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentregistration statement;
(fm) as provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of Stratos' businesses and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly as practicable after prior to the filing with the SEC of any document which that is to be incorporated by reference into the Registration Statement registration statement or the Prospectus prospectus (after the initial filing of the Registration Statementsuch registration statement), provide copies of such document to counsel for the selling holders of Registrable Securities and to each managing underwriter, if any, and make Stratos' representatives reasonably available for discussion of such document and make such changes in such document concerning the selling holders prior to the Participating Shareholders and to the managing underwritersfiling thereof as counsel for such selling holders or underwriters may reasonably request;
(gp) provide furnish to the Participating Shareholders Major Holder participating in the offering and each the managing underwriter, without charge, at least one (1) signed copy copy, and to each other Holder participating in the offering, without charge, at least one (1) photocopy of a signed copy, of the Registration Statement registration statement and any post-effective amendment amendments 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);
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(jq) cooperate with the Participating Shareholders selling Holders of Registrable Securities and the managing underwritersunderwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold sold, and not bearing any restrictive legends; and enable cause such Registrable Securities to be issued in such denominations and registered in such names as in accordance with the managing underwriters may request at least two (2) Business Days underwriting agreement prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause underwriters or, if not an underwritten offering, in accordance with the instructions of the selling Holders of Registrable Securities covered by the Registration Statement at least three (3) business days prior to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition any sale of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a instruct any transfer agent and registrar for all of Registrable SecuritiesSecurities to release any stop transfer orders in respect thereof;
(or) enter into such agreements (including an underwriting agreement) and take all such other commercially reasonable actions in connection therewith as Participating Shareholders are necessary or the managing underwriters, if any, reasonably request advisable in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsSecurities; and
(rs) take no direct or indirect action prohibited by Regulation M under the Exchange Act; PROVIDED, HOWEVER, that to the extent that any prohibition is applicable to Stratos, Stratos will take such other reasonable steps that are action as is necessary or advisable to permit the sale of make any such Registrable Securitiesprohibition inapplicable. The Company Stratos may require the Participating Shareholders as a condition precedent to Stratos' obligations under this Section 2.4 that each seller of Registrable Securities as to which any registration is being effected furnish to the Company Stratos such information and documents regarding the Participating Shareholders such seller and the distribution of the Registrable Securities such securities as the Company Stratos may from time to time reasonably request request; PROVIDED, HOWEVER, that such information is necessary for Stratos to consummate such registration and shall be used only in writingconnection with such registration. Each Shareholder Holder of Registrable Securities agrees that, that upon receipt of any notice from the Company Stratos of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 5(d)(vi) hereof2.4, such Shareholder Holder will forthwith discontinue such Holder's disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such ShareholderHolder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by paragraph (e) of this Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, 2.4 and, if so directed by the CompanyStratos, each Participating Shareholder will, or will request the underwriters to, deliver to the Company Stratos (at the Company's Stratos' expense) all copies, other than permanent file copies copies, then in such ShareholderHolder's possession, possession of the Prospectus prospectus covering such Registrable Securities current that was in effect at the time of receipt of such notice. If In the Company event Stratos shall give any such notice, the time periods applicable period mentioned in paragraph (b) of this Section 5(c) hereof 2.4 shall be extended by the number of days during the such period from and including the date of the giving of such notice pursuant to Section 5(d)(vi) to and including the date when each seller of any Registrable Securities covered by such Participating Shareholder registration statement shall have received the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 5(l2.4. If any such registration statement or comparable statement under "blue sky" laws refers to any Holder by name or otherwise as the Holder of any securities of Stratos, then such Holder shall have the right to require (i) or the Advice.insertion therein of language, in form and substance reasonably satisfactory to such Holder and Stratos, to the effect that the holding by such Holder of such securities is no
Appears in 2 contracts
Sources: Registration Rights Agreement (Stratos Lightwave Inc), Registration Rights Agreement (Stratos Lightwave Inc)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to use its best efforts to effect the registration of any Registrable Securities be registered under the Securities Act pursuant to this AgreementSECTION 2 or SECTION 3, the Company shall promptly take all such actions as may be necessary or desirable will use its best efforts to permit effect the registration and sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofthereof specified by the Holders participating therein. Without limiting the foregoing, and pursuant thereto the Company shall in each such case will, as expeditiously as possible:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty Commission (60) days after receipt in the case of a Demand Registration), the relevant Demand Request requisite registration statement to effect such registration (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60Securities Act or the rules and regulations promulgated thereunder) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 PROVIDED, that as far in advance as practical before filing such registration statement or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and counsel for the underwriters, if any, Requesting Holders copies of reasonably complete drafts of all such documents in substantially the form proposed to be filed (including documents incorporated therein by referenceexhibits), and any such Holder shall have the opportunity to enable object to any information pertaining solely to such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, Holder that is contained therein and the Company shall will make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be corrections reasonably requested by such Participating Shareholders and the managing underwriter Holder with respect to such information prior to filing any such registration statement or underwriters, if anyamendment;
(c) subject to paragraph (b) above, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the Registration Statement such registration statement and any prospectus used in connection therewith as may be necessary to keep maintain the Registration Statement continuously effective for a period effectiveness of not less than ninety (90) days; cause the Prospectus such registration statement and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities included in such registration statement, in accordance with the intended methods of disposition thereof, until the earlier of (i) such time as all of such securities covered by such Registration Statement during the applicable period have been disposed of in accordance with the intended methods of disposition by the Participating Shareholders seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectusregistration statement and (ii) one hundred eighty (180) days after such registration statement becomes effective;
(dc) promptly notify the Participating Shareholders each Requesting Holder and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, :
(i) when the Prospectus such registration statement or any Prospectus prospectus used in connection therewith, or any amendment or supplement or post-effective amendment thereto, has been filed, filed and, with respect to the Registration Statement such registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(ii) of any written request by the SEC Commission for amendments or supplements to the Registration Statement such registration statement or the Prospectus or for additional information, prospectus;
(iii) of the notification to the Company by the Commission of its initiation of any proceeding with respect to the issuance by the SEC Commission of, or of the issuance by the Commission of, any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, such registration statement; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction under the applicable securities or the initiation or threatening blue sky laws of any proceeding for jurisdiction;
(d) furnish to each seller of Registrable Securities included in such purposeregistration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such Holder's Registrable Securities, and (vi) such other documents, as such seller may reasonably request to facilitate the disposition of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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 misleadingits Registrable Securities;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such qualify all Registrable Securities for offer and sale included in such registration statement under the such other securities or blue sky laws of such jurisdictions as each Holder thereof shall reasonably request and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any seller or underwriter other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions 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 (i) to qualify generally to do business as a foreign corporation in any jurisdiction where wherein it is would not then but for the requirements of this paragraph (e) be obligated to be so qualified qualified, or (ii) to take any action which would subject it consent to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sojurisdiction;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(kf) use its reasonable best efforts to cause the all Registrable Securities covered by the Registration Statement included in such 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 each Holder thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(lg) upon to the occurrence extent any of the following are obtained by or furnished to the Company or the underwriters, furnish to each Requesting Holder a signed counterpart, addressed to such Holder (and the underwriters, if any), of
(i) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), reasonably satisfactory in form and substance to such Holder, and
(ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten Public Offerings of securities; and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements and such other financial matters as such Holder (or the underwriters, if any) may reasonably request;
(h) notify each Holder whose Registrable Securities are included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event contemplated by paragraph (d)(vi) aboveas a result of which any prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at the request of any such Holder promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securitiessuch securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(mi) otherwise use its reasonable best efforts to cause comply with all Registrable applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities covered by the Act and Rule 158 promulgated thereunder, and not file any amendment or supplement to such Registration Statement or prospectus to be listed which any such seller or any Requesting Holder shall have reasonably objected on the Nasdaq National Market and each other exchange on which similar securities issued by grounds that such amendment or supplement does not comply in all material respects with the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy requirements of the same if and when requested, and matters relating to the compliance Securities Act or of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement rules 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 regulations thereunder;
(pj) make available for inspection during normal business hours by the Participating Shareholdersany Requesting Holder, any underwriter participating in any disposition distribution pursuant to such registration statement, and any attorney, accountant or other agent retained by such Holder or underwriter (collectively, the Participating Shareholders or any such underwriter"INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the CompanyCompany (collectively, the "RECORDS") reasonably necessary to enable the Inspectors to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qk) otherwise use its reasonable best efforts to comply with provide a transfer agent and registrar for all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Registrable Securities Act, no included in such registration statement not later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch registration statement; and
(rl) take use its best efforts to cause all Registrable Securities included in such other reasonable steps that registration statement to be listed, upon official notice of issuance, on any securities exchange on which any of the securities of the same class as the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securitiesthen listed. The Company may require the Participating Shareholders each Holder whose Registrable Securities are being registered to, and each such Holder, as a condition to including Registrable Securities in such registration, shall, furnish to the Company and the underwriters with such information and documents affidavits regarding the Participating Shareholders such Holder and the distribution of the Registrable Securities such securities as the Company and the underwriters may from time to time reasonably request in writingwriting in connection with such registration. Each Shareholder agrees that, upon Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(viparagraph (h) hereofof this SECTION 4, such Shareholder each Holder will forthwith discontinue such Holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such Shareholder's receipt of Holder receives the copies of the supplemented or amended Prospectus prospectus contemplated by Section 5(l), or until it is advised in writing paragraph (the "ADVICE"h) 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, this SECTION 4 and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies copies, then in such ShareholderHolder's possession, possession of the Prospectus covering prospectus relating to such Registrable Securities current at the time of receipt of such notice. If In the event the Company shall give any such notice, the time periods mentioned period referred to in Section 5(cparagraph (b) hereof of this SECTION 4 shall be extended by a number of days equal to the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(viparagraph (h) of this SECTION 4 and to and including the date when each Holder whose Registrable Securities are included in such Participating Shareholder shall have received registration statement receives the copies of the supplemented or amended prospectus contemplated by Section 5(lparagraph (h) or the Adviceof this SECTION 4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tunes Com Inc), Registration Rights Agreement (Tunes Com Inc)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this Agreement, If and whenever the Company shall promptly take all such actions as may be necessary or desirable is required by the provisions of this Agreement to permit the sale effect a registration of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleSecurities:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, The Company will use its commercially reasonable best efforts to prepare and file with the SEC not later than sixty SEC, within the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (60or on such other registration form available to the Company that permits the greatest extent of incorporation by reference of materials filed by the Company, under the Exchange Act), and will use commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable thereafter and to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 180 days after receipt such Registration Statement becomes effective, in the case of registrations pursuant to Section 2, or (2) 90 days after such Registration Statement becomes effective, in the relevant Demand Request (which sixty (60) day case of registrations pursuant to Section 3, in every case as any such period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 subsection (h) or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;Section 8.
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the The Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, will prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective for a such period of not less than ninety time required by subsection (90) days; cause the Prospectus to a), as such period may be supplemented by any required Prospectus supplement, and as so supplemented to be filed extended pursuant to Rule 424 under the Securities Act; and subsection (h) or Section 8.
(c) The Company will comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in during which any such Registration Statement or supplement is required to the Prospectus;be effective.
(d) notify The Company will furnish to any Holder and any underwriter of Registrable Securities (1) such number of copies (including manually executed and conformed copies) of such Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of the Participating Shareholders prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and the managing underwritersfinal prospectus and including prospectus supplements), and (3) such number of copies of other documents, in each case as the Holder or such underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to register or qualify all Registrable Securities covered by such Registration Statement under the securities or "blue sky" laws of states of the United States and any other jurisdiction as any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; but the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject.
(f) The Company will use, as soon as practicable after the effectiveness of the Registration Statement, commercially reasonable efforts to cause the Registrable Securities covered by such Registration Statement to be registered with, or approved by, such other United States and Bermuda public, governmental or regulatory authorities, if any, promptlyas may be required in connection with the disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, and the Nasdaq National Market System) on which any securities of the Company are then listed, if the listing of such Registrable Securities is then permitted under the applicable rules of such exchange (or if applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable and, if requested by any such Person) Holder, confirm such advice notification in writing, (i1) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment thereto has been filed with and declared effective by the same has become effectiveSEC, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii2) of the issuance by the SEC of any stop order suspending or the effectiveness coming to its knowledge of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v3) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (vi4) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which 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;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the a Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of related prospectus so that such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder 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 to make the statements therein, in light of the circumstances under which they are made, not misleading;
), and (m5) use its reasonable best efforts of the Company's determination that the filing of a post-effective amendment to cause all a Registration Statement shall be necessary or appropriate. Upon the receipt of any notice from the Company of the occurrence of any event of the kind described in clause (4), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities covered by pursuant to the Registration Statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be listed on the Nasdaq National Market and each other exchange on which similar securities issued effective shall be extended by the Company are then listed if requested by Shareholder or number of days from and including the managing underwritersdate such notice is provided, if any;to and including the date when the Holders shall have received copies of the corrected prospectus.
(ni) provide a transfer agent and registrar for all Registrable Securities;
(o) The Company will enter into such agreements (including an underwriting agreement) and take all such other appropriate actions in connection therewith as Participating Shareholders or the managing underwriters, if any, are customary and reasonably request in order necessary 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement making its management available to not sell equity securities during a customary lock-up period) and confirm the accuracy of extent reasonably requested by the same if and when requestedHolders to participate in marketing presentations to potential investors in connection with any underwritten offering), and matters relating in that regard, will deliver to the compliance of the Registration Statement Holders such documents and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters certificates as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters Holders of a majority of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered intoRegistrable Securities being sold or, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and applicable, the managing underwriters, if any, to evidence the Company's compliance with clause (i) above and with any customary conditions contained this Agreement, including, 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 case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the extent required thereunder;
(p) make available for inspection during normal business hours by managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorneyor if such letter can not be obtained through the exercise of commercially reasonable efforts, accountant or other agent retained by cause its independent accountants to deliver to the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders financial statements included or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (registration statement at the Company's expense) all copies, other than permanent file copies highest level permitted to be given by such accountants under the then in such Shareholder's possession, applicable standards of the Prospectus covering American Institute of Certified Public Accountants with respect to such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the AdviceRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Exel LTD), Registration Rights Agreement (Xl Capital LTD)
Registration Procedures. Whenever a Shareholder has requested that any Registrable Securities be registered pursuant to this AgreementIn connection with the Resale Registration Statement, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possibleBuyer shall:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, 1.4.1 use its commercially reasonable best efforts to prepare and file with the SEC not later than sixty (60) days after receipt of the relevant Demand Request (which sixty (60) day period may be extended by the Company for up to an additional sixty (60) days if at the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement the registration statement to become effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously remain effective for a continuous period of not less than ninety two (902) days; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing underwritersyears or, if anyearlier, promptly, and (if requested by any such Person) confirm such advice in writing, (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 same has become effective, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification until all of the Registrable Securities for sale included in any jurisdiction such registration statement have been sold thereunder or the initiation date on which all of the Registrable Securities may be resold by each of the Holders without registration pursuant to Rule 144 without volume or threatening manner of any proceeding for such purposesale limitations, and (vi) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order shall use reasonable best efforts to make the statements therein not misleading;
(e) make every reasonable effort to as promptly as is practicable obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
1.4.2 notify as promptly as reasonably practicable each seller of Registrable Securities of each of (A) the filing and effectiveness of the Registration Statement at registration statement and prospectus and any amendment or supplements thereto, (B) the earliest possible momentreceipt of any comments from the Commission or any state securities law authorities or any other governmental authorities with respect to any such registration statement or prospectus or any amendments or supplements thereto, and (C) any oral or written stop order with respect to such registration, any suspension of the registration or qualification of the sale of such Registrable Securities in any jurisdiction, or any initiation or threatening of any proceedings with respect to any of the foregoing;
(f) as promptly as practicable after filing with 1.4.3 if requested, furnish to each seller of Registrable Securities, the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)underwriters, provide copies of such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriterssales or placement agent, if any, as many and counsel for each of the foregoing, a conformed copy of such registration statement and each amendment and supplement thereto (in each case, including all exhibits thereto and documents incorporated by reference therein) and such additional number of copies of such registration statement, each amendment, and supplement thereto (in such case without such exhibits and documents), the Prospectus prospectus (including each preliminary prospectus) included in such registration statement, and any amendment or supplement prospectus supplements and all exhibits thereto and documents incorporated by reference therein, and such other documents as such Persons seller, underwriter, agent, or counsel may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by such seller; provided, that the Prospectus or Buyer shall have no obligation to provide any amendment or supplement theretodocument pursuant to this section that is available on the Commission’s ▇▇▇▇▇ system;
(i) prior to the date on which the Registration Statement is declared effective, 1.4.4 use its commercially reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the 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 securities or “blue sky sky” laws of such jurisdictions as any seller or underwriter the holders of Registrable Securities reasonably requests in writing request and do any and all other acts or and things that may be reasonably necessary or advisable to enable the holders of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by such holders and keep such registration or qualification in effect for so long as the Registration Statement; registration statement remains effective under the Securities Act (provided that the Company will Buyer shall not be required to (x) qualify generally to do business in any jurisdiction where in which it is would not then so qualified otherwise be required to qualify but for this paragraph, (y) subject itself to taxation in any such jurisdiction in which it would not otherwise be subject to taxation but for this paragraph, or (z) consent to take the general service of process in any action jurisdiction in which it would not otherwise be subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) but for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do sothis paragraph);
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the 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 1.4.5 notify each seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) , at any time when a prospectus relating thereto is required to be delivered under the Securities Act and the rules and regulations thereunder, upon the occurrence discovery that, or of the happening of any event contemplated by paragraph (d)(vi) aboveas a result of which, the registration statement covering such Registrable Securities, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, and as promptly as reasonably practicable prepare and furnish to each such seller a supplement or post-effective Amendment amendment to the prospectus contained in such registration statement so that such Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so thatshall not, and such prospectus as thereafter delivered to the purchasers of the such Registrable SecuritiesSecurities shall not, 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 any fact necessary to make the statements therein not misleading;
(m) 1.4.6 use its commercially reasonable best efforts to cause all Registrable Securities covered by the Registration Statement so registered to be listed on The Nasdaq Global Market or such other national securities exchange or established over-the-counter market as is then the Nasdaq National Market and each other exchange principal market on which or through which similar securities issued by of the Company Buyer are then listed if requested by Shareholder or the managing underwriters, if anytraded;
(n) 1.4.7 provide and cause to be maintained a transfer agent and registrar for all such Registrable SecuritiesSecurities covered by such registration statement not later than the effective date of such registration statement;
(o) enter into 1.4.8 use commercially reasonable efforts to comply with all applicable laws related to such agreements (including an underwriting agreement) registration statement and take offering and sale of securities and all such other actions applicable rules and regulations of governmental authorities in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement Securities Act and the Prospectus with the Securities Act; (ii) obtain opinions Exchange Act of counsel to the Company1934, and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periodsamended); and
(r) take such other 1.4.9 permit any Holder, which Holder, in its reasonable steps that are necessary judgment, might be deemed to be an underwriter or advisable controlling Person of the Buyer, to permit participate in the sale preparation of such Registrable Securities. The Company may registration statement and to require the Participating Shareholders to furnish insertion therein of material, furnished to the Company such information and documents regarding the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request Buyer in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt reasonable judgment of such notice. If the Company shall give Holder and such notice, the time periods mentioned in Section 5(c) hereof shall Holder’s counsel should be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceincluded.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Zogenix, Inc.), Sale and Purchase Agreement (Zogenix, Inc.)
Registration Procedures. Whenever If and whenever the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause a Shareholder has requested that any Registrable Securities be registered pursuant to registration as provided in this Agreement, and at such times as customarily occur in registered offerings or shelf takedowns, as applicable, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possiblewill:
(a) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its Use all commercially reasonable best efforts to prepare and file with the SEC not later than sixty SEC, a registration statement within the time periods specified herein, and use all commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable and to remain effective under the Securities Act until the earlier of such time as all securities covered thereby are no longer Registrable Securities or twenty-four (6024) days months after receipt of the relevant Demand Request (which sixty (60) day such registration statement becomes effective with respect to registrations pursuant to Section 2(a), in every case as any such period may be extended by pursuant to Section 5(l) or Article 7 hereto (provided that the Company for up to an additional sixty (60) days if at the time of such request may replace a shelf registration statement filed on Form S-1 with a shelf registration statement filed on Form S-3 as and when the Company is engaged in negotiations in anticipation of its participation in becomes eligible to file S-3 registration statements as long as such a material merger, acquisition or other form of business combination or, if by reason of shelf registration statement filed on Form S-1 remains effective until such transaction, time as the Company is not in a position to timely prepare and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such replacement shelf registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement statement filed on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may 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 reasonable best efforts to cause such Registration Statement to become Form S-3 becomes effective; the Company shall not file any Registration Statement pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations);
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement), the Company shall, at least five (5) days before filing, furnish to each Participating Shareholder and the underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare Prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a such period of not less than ninety time required by Section 5(a) above, as such period may be extended pursuant to Section 5(l) or Article 7 hereto;
(90c) daysWithin a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the Holders of the Registrable Securities being sold and to the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; cause fairly consider such reasonable changes in any such documents prior to or after the Prospectus filing thereof as the counsel to the Holders of the Registrable Securities being sold or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the Holders of the Registrable Securities being sold or any underwriter available for discussion of such documents;
(d) Within a reasonable time prior to the filing of any document which is to be supplemented incorporated by any required Prospectus supplementreference into a registration statement or a prospectus, provide copies of such document to counsel for the Holders and underwriters; fairly consider such reasonable changes in such document prior to or after the filing thereof as so supplemented to be filed pursuant to Rule 424 under the Securities Actcounsel for such Holders or such underwriter shall request; and comply make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
(e) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in during which any such Registration Statement or supplement registration statement is required to the Prospectusbe effective;
(df) notify Furnish to any Holder and any underwriter of Registrable Securities, without charge (i) such number of copies (including manually executed and conformed copies) of such registration statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (ii) such number of copies of the Participating Shareholders prospectus, used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and the final prospectus), and (iii) such number of copies of other documents, in each case as such Holder or such underwriter may reasonably request;
(g) Use all commercially reasonable efforts to register or qualify all Registrable Securities covered by such registration statement under the securities or “blue sky” laws of states of the United States as any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject;
(h) Cooperate with the Holders of the Registrable Securities being sold and the sole underwriter or managing underwritersunderwriter of an underwritten offering shares, if any, promptlyto facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the Holders of the Registrable Securities being sold or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five (5) days prior to any sale of such shares;
(i) Use all commercially reasonable efforts to cause the Registrable Securities covered by such registration statement to be registered with, or approved by, such other United States public, governmental or regulatory authorities, if any, as may be required in connection with the disposition of such Registrable Securities;
(j) Use all commercially reasonable efforts to list the securities covered by such registration statement on any securities exchange on which any securities of the Company is then listed, if the listing of such Registrable Securities are then permitted under the applicable rules of such exchange;
(k) Use all commercially reasonable efforts to facilitate the distribution and sale of any shares of Common Stock to be offered pursuant to this Agreement, including without limitation by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be requested by the Holders of the Registrable Securities being sold or the lead managing underwriter of an underwritten offering;
(l) Notify each Holder as promptly as practicable and, if requested by any such Person) Holder, confirm such advice notification in writing, (i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the Registration Statement a registration statement or any post-effective amendmentamendment thereto, when the same has become effectivebeen declared effective by the SEC, (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending or the effectiveness coming to the Company’s attention of the Registration Statement or the initiation of any proceedings for that such or a similar purpose, (iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (viii) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (viiv) of the occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus to a registration statement or any document incorporated therein by reference in order to make the statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of related prospectus so that such document to counsel to the Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder 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 to make the statements therein, in light of the circumstances under which they are made, not misleading;), and (v) of the Company’s determination that the filing of a post-effective amendment to the Registration Statement shall be necessary or appropriate. Upon the receipt of any notice from the Company of the occurrence of any event of the kind described in clause (iv) or (v) of this Section 5(l), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders’ possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the registration statements are required to be effective as set forth under Section 5(a) shall be extended by the number of days from and including the date such notice is provided, to and including the date when Holders shall have received copies of the corrected prospectus; and
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter Enter into such agreements (including an underwriting agreement) and take all such other appropriate actions in connection therewith as Participating Shareholders or the managing underwriters, if any, are customary and reasonably request in order necessary 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 (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitationin the case of an underwritten offering, an agreement to not sell equity securities during a underwriting agreements in customary lock-up period) and confirm the accuracy of the same if and when requestedform, and matters relating including provisions with respect to the compliance of the Registration Statement indemnification and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be contribution in customary form and covering matters of consistent with the type customarily covered provisions relating to indemnification and contribution contained herein), and in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered intothat regard, deliver to the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver Holders such documents and certificates as may be reasonably requested by any Holder of the Participating Shareholders and Registrable Securities being sold or, as applicable, the managing underwriters, if any, to evidence the Company’s compliance with clause this Agreement including, without limitation, using all commercially reasonable efforts to cause its independent accountants to deliver to the Company (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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating Holders of Registrable Securities being sold in any disposition pursuant registration) an accountants’ comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement or, if such registration statementletter can not be obtained through the exercise of all commercially reasonable efforts, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees its independent accountants to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(q) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) days after the end of any twelve (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or advisable to permit the sale of such Registrable Securities. The Company may require the Participating Shareholders to furnish deliver to the Company such information (and documents regarding to the Participating Shareholders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition Holders of Registrable Securities until such Shareholder's receipt of being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the copies of the supplemented Company’s financial statements included or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (registration statement at the Company's expense) all copies, other than permanent file copies highest level permitted to be given by such accountants under the then in such Shareholder's possession, applicable standards of the Prospectus covering Association of Independent Certified Accountants with respect to such Registrable Securities current at the time of receipt of such noticeregistration statement. If In addition, the Company shall give such notice, furnish to the time periods mentioned Holders of Registrable Securities being included in Section 5(c) hereof shall be extended by the number any registration hereunder an opinion of days during the period from counsel in substance and including the date of the giving of such notice pursuant scope as are customarily delivered to Section 5(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Adviceunderwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (MedQuist Holdings Inc.), Registration Rights Agreement (MedQuist Holdings Inc.)
Registration Procedures. Whenever a Shareholder has requested that If and whenever the Company is required to effect the registration of any Registrable Securities be registered pursuant to this Agreementunder the 1933 Act as provided in Section 2.2 and, as applicable, 2.3, the Company shall promptly take all such actions as may be necessary or desirable to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as possible:
(ai) with respect to a request to file a Registration Statement covering Registrable Securities made pursuant to Article 3, use its reasonable best efforts to prepare and file with the SEC not later than sixty the Registration Statement, or amendments thereto, to effect such registration (60) days after receipt of the relevant Demand Request (which sixty (60) day period including such audited financial statements as may be extended required by the Company for up to an additional sixty (60) days if at 1933 Act or the time of such request the Company is engaged in negotiations in anticipation of its participation in a material merger, acquisition or other form of business combination or, if by reason of such transaction, the Company is not in a position to timely prepare rules and file the Registration Statement and the Company furnishes to each Shareholder participating, or electing to participate, in such registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate signed by the president or a vice president of the Company stating that in the good faith opinion of the board of directors of the Company such registration would interfere with such transaction then being pursued by the Company) a Registration Statement on a form for which the Company then qualifies which is satisfactory to the Company and the Participating Shareholders (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or underwriters may determine the form to be usedregulations promulgated thereunder) 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 thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective; be declared effective by the Company shall not file SEC, as soon as practicable, but in any Registration Statement event no later than the Required Effectiveness Date (with respect to a registration pursuant to Article 3 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Shareholders or the underwritersSection 2.2); provided, if anyhowever, shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (excluding documents to be incorporated by reference therein, except in the case of the preparation of the initial Registration Statement)thereto, the Company shall, at least five (5) days before filing, will furnish to each Participating Shareholder and the underwriters, if anycounsel selected by the holders of Registrable Securities which are to be included in such registration, copies of all such documents in substantially the form proposed to be filed (including documents incorporated therein by reference), to enable such Participating Shareholders and the underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to, or the filing of amendments reflecting such changes to, documents incorporated by reference) as may be reasonably requested by such Participating Shareholders and the managing underwriter or underwriters, if anyfiled;
(cii) subject with respect to paragraph (b) aboveany Initial or Subsequent Registration Statement, prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously such registration statement effective for a period of not less than ninety (90) days; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for an Excusable Reason (each a “Black-Out Period”)) or such time as all of the securities which are the subject of such registration statement cease to be Registrable Securities (such period, in each case, the “Registration Maintenance Period”). The Company shall notify the Investors within twenty four (24) hours prior to any Black-Out Period;
(iii) furnish to each holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the 1933 Act, in conformity with the requirements of the 1933 Act, and such other documents, as such holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement during registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary to enable such holder of Registrable Securities to consummate the applicable period in accordance with the intended methods of disposition by the Participating Shareholders set forth in such Registration Statement jurisdictions of the securities owned by such holder of Registrable Securities, 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 wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or supplement to the Prospectusconsent to general service of process in any such jurisdiction;
(dv) notify use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Shareholders U.S. holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each holder of Registrable Securities who requests, a signed counterpart, addressed to such holder of Registrable Securities, and the managing underwriters, if any, promptlyof an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), such opinion to be in the form filed as Exhibit 5 to the registration statement, and
(vii) notify the Investors and (if requested by any such Person) their counsel promptly and confirm such advice in writing, writing promptly after the Company has knowledge thereof:
(ia) when the Prospectus Registration Statement, the prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(iib) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(iiic) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(iv) if at any time any of the representations or warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (vd) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or blue sky laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose;
(viii) notify each holder of Registrable Securities covered by such registration statement, and (vi) of at any time when a prospectus relating thereto is required to be delivered under the occurrence 1933 Act, upon discovery that, or upon the happening of any event which makes any statement made in the Registration Statementas a result of which, the Prospectus prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any document incorporated material facts required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and at the request of any such holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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;
(eix) make every use its commercially reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any document which is 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 Participating Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Participating Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(i) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, or cooperate with the Participating Shareholders and the underwriters, if any, and their respective counsel in connection with the registration or qualification of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or taxes in any such jurisdiction where it is not then so subject; provided, further, that the Company will not be required to qualify such Registrable Securities in any jurisdiction in which the securities regulatory authority requires that the Participating Shareholders submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lock-up or similar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless the Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d)(vi) above, prepare a supplement or post-effective Amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of 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;
(m) use its reasonable best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Nasdaq National Market and each other exchange on which similar securities issued by the Company are then listed if requested by Shareholder or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as Participating Shareholders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (i) make such representations and warranties to the Participating Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings (including, without limitation, an agreement to not sell equity securities during a customary lock-up period) and confirm the accuracy of the same if and when requested, and matters relating to the compliance of the Registration Statement and the Prospectus with the Securities Act; (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) addressed to Participating Shareholders and the underwriters, if any, covering the matters customary in underwritten primary offerings and such other matters as may be reasonably requested by the Participating Shareholders and underwriters, if any; (iii) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants, subject to such accountants' customary procedures, addressed to the Participating Shareholders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters by underwriters in connection with primary underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Article 7 with respect to all parties to be indemnified pursuant to said Section; and (v) the Company shall deliver such documents and certificates as may be requested by the Participating Shareholders and the managing underwriters, if any, 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 thereunder;
(p) make available for inspection during normal business hours by the Participating Shareholders, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by the Participating Shareholders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Participating Shareholders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons;
(qx) otherwise use its commercially 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, an earnings statements satisfying statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than forty-five 1933 Act and Rule 158 thereunder;
(45xi) days after enter into such agreements and take such other actions as the end of any twelve Investors shall reasonably request in writing (12)-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwriting offering, and (ii) beginning with the first month expense of the Company's first fiscal quarter commencing after requesting or benefiting Investors) in order to expedite or facilitate the effective date disposition of the Registration Statement, which statements shall cover said twelve (12)-month periodssuch Registrable Securities; and
(rxii) take use its commercially reasonable best efforts to list all Registrable Securities covered by such other reasonable steps that registration statement on any securities exchange on which any of the Registrable Securities are necessary or advisable to permit the sale of such Registrable Securities. then listed.
(xiii) The Company may require the Participating Shareholders each holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information and documents regarding the Participating Shareholders such holder of Registrable Securities and the distribution of the Registrable Securities such securities as the Company may from time to time reasonably request in writing. Each Shareholder agrees thatIn this connection, the Investors shall:
(a) furnish the information as to any shares of Common Stock or other securities of the Company owned by the holder, the holder’s proposed plan of distribution, any relationship between the holder and the Company and any other information which the Company reasonably requests in connection with the preparation of the registration statement and update such information immediately upon receipt the occurrence of any notice from events or condition which make the Company information concerning the Seller inaccurate in any material respect;
(b) not sell any Registrable Securities pursuant to the registration statement except in the manner set forth in the Registration Statement;
(c) comply with the prospectus delivery requirements and the provisions of Regulation M of the happening of SEC pursuant to the 1933 Act to the extent that such regulation is applicable to the holder;
(d) not sell or otherwise transfer or distribute any event of the kind described in Section 5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of Registrable Securities until such Shareholder's receipt of if the copies of the supplemented or amended Prospectus contemplated by Section 5(l), or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed, and has received copies of holder possesses any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by material nonpublic information concerning the Company, each Participating Shareholder will, or will request the underwriters to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give such notice, the time periods mentioned in Section 5(c) 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(d)(vi) to and including the date when such Participating Shareholder shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(l) or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Achievers Magazine Inc), Registration Rights Agreement (Capital Solutions I, Inc.)