Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable): (i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness; (ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective; (iii) furnish 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 in writing each Selling Holder and the underwriters, if any, of the following events: (1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective; (2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information; (3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and (5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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; (x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement; (xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate; (xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities; (xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities; (xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and (xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
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. In the case of each registration, qualification or compliance effected by the Company pursuant to this Section 2, the Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its expense the Company will:
(a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare Prepare and file with the Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules securities and regulations of the Commission, and thereafter use its commercially reasonable efforts to cause such registration statement to become and remain effective pursuant until the distribution described in the Registration Statement has been completed (up to the terms a maximum of this Agreementone hundred twenty (120) days); provided, however, that in the Company may discontinue case of any registration of its securities Registrable Securities on Form S-3 which are not Registrable Securities at any time prior intended to the effective date of be offered on a continuous or delayed basis, such period shall be extended, if necessary, to keep the registration statement relating thereto; providedeffective until all such Registrable Securities are sold, provided that if Rule 415, or any successor rule under the Securities Act, permits an offering on a continuous or delayed basis, and provided further that before if applicable rules under the Securities Act governing the obligation to file a post-effective amendment permit, in lieu of filing such a post-effective amendment which (i) includes any prospectus required by Section 10(a)(3) of the Securities Act or (ii) reflects facts or events representing a material or fundamental change in the information set forth in the registration statement or any amendments theretostatement, the Company will furnish to the counsel selected incorporation by the holders reference of Registrable Securities which are information required to be included in such (i) and (ii) above shall be contained in periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessstatement;
(iib) prepare Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein with such registration statement 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;statement.
(iiic) furnish Furnish to each Selling Holder the Participating Holders and each underwriter, if any, to the underwriters of the securities being sold by registered 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 reasonable number of copies of the registration statement, preliminary prospectus, final 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, they may reasonably request in order to facilitate the public sale or other disposition offering of the Registrable Securities owned by such seller;securities.
(ivd) use Use its commercially reasonable efforts to register or and qualify such Registrable Securities the 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 requested by the disposition in such jurisdictions of the Registrable Securities owned by such Selling HolderParticipating Holders, except provided that the Company shall not for any such purpose be required in connection therewith or as a condition thereto 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 states or jurisdictions, unless the Company are then listed and, if no is already subject to service in 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 jurisdiction and except as may be necessary to enable required by the Selling Holder(sSecurities Act.
(e) thereof to consummate In the disposition 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 Registrable Securities;offering. Each Participating Holder shall also enter into and perform its obligations under such an agreement.
(viif) in connection with an Underwritten Offering, obtain for Notify each Selling Participating 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, Act or upon the happening of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any 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 purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in the light of the circumstances then existing.
(xg) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of Cause all securities covered by such registration statement;statement to be listed on a national exchange or trading system and on each securities exchange or authorized for quotation on each automated quotation system on which similar securities issued by the Company are then listed or authorized for quotation.
(xih) otherwise use commercially reasonable efforts to comply with Provide a transfer agent and registrar for all applicable rules Registrable Securities covered by such registration statement and regulations of the Commissiona CUSIP number for all such Registrable Securities, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but in each case not more later than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration.
(i) Furnish, at the request of any Participating Holder, on the date that the securities are delivered to the underwriters for sale in connection with a registration statementbeing sold through underwriters, which earnings statement shall satisfy the provisions of Section 11(a(i) an opinion, dated such date, of the Securities Act counsel representing the Company for the purposes of such registration, in form and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter substance as is customarily given to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law)underwriters in an underwritten public offering, if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available addressed to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriterunderwriters, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 underwriterParticipating Holders and (ii) a letter dated such date, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company independent certified public accountants of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Companyunderwriters, at if any, and to the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession Holders requesting registration 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (YuMe Inc), Investors’ Rights Agreement (YuMe Inc), Investors’ Rights Agreement (YuMe Inc)
Registration Procedures. (a) If In connection with the Company’s registration obligations pursuant to Articles II and whenever III hereof, the Company is required to will use commercially its reasonable efforts to effect such registrations to permit the registration sale of any Registrable Securities under by a Holder in accordance with the Securities Act as provided in Sections 3.1 intended method or methods of disposition thereof, and 3.2, pursuant thereto the Company shall will as promptly as practicable (in each case, to the extent applicable):reasonably practicable:
(ia) prepare and file with the Commission SEC a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted Registration Statement on an appropriate form under the rules and regulations Securities Act available for the sale of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to Registrable Securities by the terms selling Holders in accordance with the intended method or methods of this Agreementdistribution thereof; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior will, before filing, furnish to each selling Holder and the effective date managing underwriters, if any, copies of the registration statement relating thereto; provided, further that before filing such registration statement Registration Statement or Prospectus or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are or supplements thereto (including documents that would be incorporated or deemed to be included in such registration (“Selling Holders”incorporated therein by reference) copies of all such documents proposed to be filedfiled and provide each selling Holder, which documents will be subject to the review of such counselmanaging underwriters, if any, and their counsel with a reasonable opportunity to comment on such review to be conducted with reasonable promptnessRegistration Statement or Prospectus or amendments or supplements thereto;
(iib) furnish, at its expense, to the selling Holders and the managing underwriters, if any, such number of conformed copies of the Registration Statement and each amendment thereto, of the Prospectus and each supplement thereto, and of such other documents as the selling Holders reasonably may request from time to time;
(c) prepare and file with the Commission such SEC any amendments (including and post-effective amendments) and supplements amendments to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein Registration Statement as may be necessary and any supplements to keep such the Prospectus as may be required or appropriate, in the view of the Company and its counsel, by the rules, regulations or instructions applicable to the registration statement effective and to comply with form used by the provisions of Company or by the Securities Act with respect to keep the disposition of all securities covered by such registration statement Registration Statement effective until the earlier of (i) such time as all of such securities have been Registrable Securities covered by the Registration Statement are disposed of in accordance with the intended methods plan of disposition by the seller or sellers thereof distribution set forth in such registration statement the Registration Statement or supplement to the Prospectus and (iii) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveEffectiveness Period;
(iii) 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);
(3d) promptly make available for inspection by any sellerfollowing its actual knowledge thereof, 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, notify 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 in writing each Selling Holder selling Holders and the managing underwriters, if any, of the following eventsand their counsel:
(1i) the filing of the registration statementwhen a Registration Statement, the prospectus or any prospectus supplement related theretoProspectus, any Issuer Free Writing Prospectus or post-effective any supplement or amendment to the registration statement thereto has been filed and, with respect to the registration statement a Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
(2ii) of any request by the Commission SEC or any other governmental authority for amendments or supplements to the registration statement a Registration Statement, Prospectus or the prospectus Issuer Free Writing Prospectus or for additional information;
(3iii) of the issuance by the Commission SEC or any other governmental authority of any stop order suspending the effectiveness of the registration statement a Registration Statement or the initiation of any proceedings by any Person for that purpose;
(4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) 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 under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
(ixv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as a result of which, which makes any statement made in the prospectus included Registration Statement or Prospectus or any Issuer Free Writing Prospectus untrue 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 respect or necessary to make which requires the statements therein not misleading, and, at the request making of any Selling Holderchanges in a Registration Statement, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to Prospectus, Issuer Free Writing Prospectus or an amendment of such prospectus as may be necessary other documents so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall that it will not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein (in the case of the Registration Statement only) or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and
(vi) to the extent not covered by Section 5.1(d)(v), of the Company’s reasonable determination that a post-effective amendment to a Registration Statement is necessary;
(xe) make every use its reasonable effort efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of such registration statementa Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable date;
(xif) otherwise prior to any public offering of Registrable Securities, register or qualify and cooperate with the selling Holders, the managing underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the selling Holders or the managing underwriters reasonably request in writing and maintain each registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such selling Holders or the underwriters, if any, to consummate any disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to qualify generally to do business in any jurisdiction in which it is not then so qualified or take any action which would subject it to general service of process or material taxation in any jurisdiction in which it is not then so subject;
(g) as promptly as practicable upon the occurrence of any event contemplated by Section 5.1(d)(v) hereof or any determination by the Company contemplated by Section 5.1(d)(vi) hereof, prepare (and furnish, at its expense, to the selling Holders and the managing underwriters, if any, a reasonable number of copies of) a supplement or post-effective amendment to each Registration Statement or a supplement to the related Prospectus (including by means of an Issuer Free Writing Prospectus), or file any other required document so that, in the case of Section 5.1(d)(v), the Registration Statement and, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus or Issuer Free Writing Prospectus will not include an untrue statement of a material fact or omit to state any material fact required (in the case of the Registration Statement only) or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in the case of Section 5.1(d)(vi), the post-effective amendment to the Registration Statement is effected in the manner determined necessary by the Company;
(h) in the case of an Underwritten Offering, enter into customary agreements (including an underwriting agreement) and take other actions reasonably necessary to expedite the disposition of the Registrable Securities, and in connection therewith:
(i) use commercially its reasonable efforts to obtain opinions of counsel to the Company (such counsel being reasonably satisfactory to the managing underwriters, if any) and updates thereof covering matters customarily covered in opinions of counsel requested in Underwritten Offerings, addressed to the underwriters;
(ii) use its reasonable efforts to obtain “comfort” letters and updates thereof from the independent certified public accountants of the Company addressed to the underwriters, if any, covering matters customarily covered in “comfort” letters in connection with Underwritten Offerings;
(iii) provide officers’ certificates and other customary closing documents reasonably requested by the managing underwriters; and
(iv) if so requested (pursuant to a notice received prior to the applicable Offering Launch) by the managing underwriters for the Underwritten Offering relating thereto, subject to customary exceptions, agree not to effect any underwritten public sale or distribution of any securities that are the same as, or similar to, the Registrable Securities to be included in the Underwritten Offering, or any securities convertible into, or exchangeable or exercisable for, any securities of the Company that are the same as, or similar to, the Registrable Securities to be included in the Underwritten Offering, during a period specified by the managing underwriters not to exceed ninety (90) days.
(i) upon reasonable notice and at reasonable times during normal business hours, make available for inspection by a representative of each selling Holder and the managing underwriters, if any, participating in any disposition of Registrable Securities and attorneys or accountants retained by any selling Holder or any underwriter, customary due diligence information; provided, however, that for the avoidance of doubt any information supplied hereunder is subject to Section 11.2 hereof;
(j) use its reasonable efforts to comply with all applicable rules and regulations of the Commission, SEC relating to such registration and make generally available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Act; provided, that the Company will be deemed to have complied with this Section 5.1(j) if it has satisfied the provisions of Rule 158 thereunderunder the Securities Act (or any similar rule promulgated under the Securities Act);
(xiik) cooperate with use its reasonable efforts to:
(i) cause all Registrable Common Securities (without regard to any proviso in such definition) to be listed on the sellers New York Stock Exchange (or such other national securities exchange on which shares of Common Stock are listed and traded from time to time);
(ii) upon the managing underwriter reasonable request of the Holders of Preferred Stock, cause all Registrable Preferred Securities (without regard to facilitate any proviso in such definition) to be listed on the timely preparation New York Stock Exchange (or such other national securities exchange on which shares of Common Stock are listed and delivery traded from time to time); and
(iii) in respect of certificates a listing referred to in the foregoing clause (which shall not bear any restrictive legends unless required under applicable lawi) and, if applicable, clause (ii), if necessary or appropriate, representing securities sold under any registration statement, and enable to maintain such securities listing;
(l) use its reasonable efforts to be in such denominations and registered in such names as procure the managing underwriter or such sellers may request and keep available and make available to cooperation of the Company’s transfer agent prior to or The Depository Trust Company, as applicable, in settling any offering or sale of Registrable Securities; and
(m) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the effectiveness disposition of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare Registrable Securities and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters their respective counsel in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in connection with any filings required to be made with the Financial Industry Regulatory AuthorityFINRA, Inc. including the retention of a “Qualified Independent Underwriter” (“FINRA”as defined in FINRA Rule 5121(f)(12)) and in the performance use of any due diligence investigation by any underwriter that is required reasonable best efforts to be undertaken in accordance obtain FINRA’s pre-clearance or pre-approval of the Registration Statement and applicable Prospectus upon filing with the rules and regulations of the FINRA; and
(xvi) 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementSEC.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 3 contracts
Sources: Registration Rights Agreement (Kennedy-Wilson Holdings, Inc.), Registration Rights Agreement (Kennedy-Wilson Holdings, Inc.), Registration Rights Agreement (Kennedy-Wilson Holdings, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 4.1, 4.2 and 3.24.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of and comment by such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.14.1, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.2, the expiration of 60 days after such registration statement becomes effectiveeffective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) 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 sellerSelling 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 commercially 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 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. 72AU 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 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); ;
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 SecuritiesSelling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix4.5(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4.5(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.a
Appears in 3 contracts
Sources: Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, LLC)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 2.1, 2.2 or 2.4, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which that are not Registrable Securities at any time prior to the effective date of the registration statement relating theretoto such securities; provided, 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 (“Selling Holders”) Holders copies of all such documents proposed to be filed, which documents will be subject to the review of and comment by such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.12.1, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Piggy-Back Registration pursuant to Section 3.22.2, the expiration of 60 days after such registration statement becomes effective;
(iii) 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 seller;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 commercially 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 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 Offeringunderwritten 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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 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 holder of Registrable Securities requesting such information Selling Holder agrees, and causes each of its Inspectorsthe Inspectors to agree, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, provided further that each Holder of Registrable Securities agrees 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 and to prevent disclosure of the Records deemed confidential;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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 omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(xxi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to the Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderof the Commission promulgated thereunder (or any successor rule or regulation hereafter adopted by the Commission);
(xiixiii) cooperate with the sellers Selling Holders and the managing any underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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;
(xiiixiv) have appropriate officers of the Company prepare and make presentations at any participate in customary “road shows” and before analysts and rating agencies, as requested by the case may bemanaging underwriter(s);
(xv) have appropriate officers of the Company, and otherwise use its reasonable best efforts to cooperate as cause representatives of the Company’s independent registered public accountants to, participate in any due diligence discussions reasonably requested by the any Selling Holders and the underwriters in the offering, marketing Holder or selling of the Registrable Securitiesany underwriter;
(xivxvi) 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;
(xvxviii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. 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 the FINRA; and;
(xvixix) 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
(xxi) use commercially reasonable efforts to take 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 proposed sale of Registrable Securities over a limited time frame. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 SecuritiesSelling 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 requested, and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) . Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix2.7(a)(x), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix2.7(a)(ix) and, if so directed by the 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 applicable 60-60 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix2.7(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
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. Subject to the other applicable provisions of this Agreement, in the case of each registration of Registrable Securities effected by the Company pursuant to Article I, the Company will:
(a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and promptly file with the Commission SEC a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules securities and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to for the terms period of the distribution contemplated thereby, in accordance with the applicable provisions of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein with such registration statement as may be necessary to keep such registration statement effective for the period specified in paragraph (a) above and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the Purchaser’s intended methods method of disposition by the seller or sellers thereof distribution set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after for such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveperiod;
(iiic) furnish to each Selling Holder the Purchaser, the Purchaser’s legal counsel, the underwriters and each underwriterthe 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 be 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 sold by registered 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 reasonable number of copies of the prospectus contained in such registration statement (including each statement, preliminary prospectus and any summary prospectus) and any other final prospectus filed under Rule 424 under as the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and Purchaser or such other documents as such Selling Holder and underwriter, if any, underwriters may reasonably request in order to facilitate the public sale offering or other disposition of the Registrable Securities owned by such sellersecurities;
(ivf) 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 promptly as reasonably practicable notify 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon Act or of the Company’s discovery that, or upon of the happening occurrence of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading 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 request of SEC a supplement or post-effective amendment to such registration statement or the related prospectus or any Selling Holderdocument incorporated therein by reference or file any other required document, promptly prepare and furnish to such seller 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 Registrable Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or incomplete in the light of the circumstances then existing;
(xg) 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, the 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 every available for inspection by the Purchaser, any underwriter participating in any such disposition of Registrable Securities, if any, and any counsel or accountants retained by the Purchaser or underwriter (collectively, the “Offering Persons”), at the offices where normally kept, during reasonable effort business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in customary due diligence sessions in each case reasonably requested by any such representative, underwriter, counsel or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order or in connection with an audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, which shall include counsel, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the Offering Persons from a source other than the Company when such source, to the knowledge of the Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use of, or reliance on, information provided by the Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a registration statement or prospectus under this Agreement and except in the case of clause (i) above when a proposed disclosure is in connection with a routine audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor);
(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 withdrawal registration statement and applicable prospectus upon filing with the SEC; and
(o) as promptly as is reasonably practicable notify the Purchaser (i) when the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or other federal or state governmental authority for amendments or supplements to such registration statement or related prospectus or to amend or to supplement such prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such registration statement;
statement or the initiation of any proceedings for such purpose, (xiiv) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of if at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of time 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 has reason to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event believe 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 representations and agreements customarily included (but not inconsistent with the covenants and agreements warranties of the Company contained hereinin any agreement contemplated by Section 2.1(f) above relating to any applicable offering cease to be true and correct or (v) of the receipt by an issuer the Company of common stock in underwriting agreements any notification with respect to offerings the suspension of common stock for the account of, qualification or on behalf of, such issuers. In connection with exemption from qualification of 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 (unlessfor sale in any jurisdiction, in or the Company’s sole discretioninitiation or threatening of any proceeding for such purpose. The Purchaser agrees that, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix2.1(f), such Selling 2.1(o)(ii) or 2.1(o)(iii), the Purchaser shall discontinue, and shall cause each Holder shall forthwith discontinue such Selling Holder’s to discontinue, disposition of any Registrable Securities pursuant to the applicable covered by such registration statement and or the related prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus, which supplement or amendment shall, subject to the other applicable provisions of this Agreement, be prepared and furnished as soon as reasonably practicable, or until the Purchaser is advised in writing by the Company that the use of the applicable prospectus contemplated may be resumed, and have received copies of any amended or supplemented prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by Section 3.6(a)(ixreference in such prospectus (such period during which disposition is discontinued being an “Interruption Period”) and, if so directed requested by the Company, deliver the Holders shall use commercially reasonable efforts to return to the Company, at the Company’s expense, Company all copies, other than permanent file copies, copies then in such Selling Holder’s their possession of the prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesrequest. As soon as practicable after the Company has determined that the use of the applicable prospectus may be resumed, the Company will notify the Purchaser thereof. In the event the Company shall give such notice, any applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by invokes an Interruption Period hereunder and in the number of days during the period from the date of giving of a notice regarding the happening of an event reasonable discretion of the kind described in Section 3.6(a)(ix) 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 date when all Purchaser that such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionInterruption 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. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 Section 4.01, Section 4.02 and 3.2Section 4.03, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of and comment by such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.14.01, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.02, the expiration of 60 days after such registration statement becomes effectiveeffective or (iii) in the case of a Shelf Registration pursuant to Section 4.03, the Shelf Registration Effectiveness Period;
(iii) 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 sellerSelling 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 commercially 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 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:
(1A) 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
(2B) 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. 72AU 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 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4D) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement 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 SecuritiesSelling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix4.05(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4.05(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.sha
Appears in 2 contracts
Sources: Stockholders Agreement (OneMain Holdings, Inc.), Stockholders Agreement (OneMain Holdings, Inc.)
Registration Procedures. (a) If and whenever the Company is ----------------------- required to use commercially reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall will, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(i) prepare and and, in any event within 120 days after the end of the period within which a request for registration may be given to the Company, file with the Commission SEC a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementbecome effective; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities is being effected pursuant to Section 3 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period not in excess of 180 days and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, that before filing a registration statement or (i) in prospectus, or any amendments or supplements thereto, the case Company will furnish to one counsel selected by the Holders of a Demand Registration pursuant to Section 3.1, majority of the expiration of 60 days after Registrable Securities covered by such registration statement becomes effective, or (ii) in the case to represent all Holders of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after Registrable Securities covered by such registration statement becomes effectivestatement, copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iii) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Registrable Securities 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 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, seller 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 its 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 each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holderseller, 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 where, but for the requirements of this clause (iv) ), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general consent to general 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 its 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) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viivi) in connection with an Underwritten Offering, obtain for notify 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 seller 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 Registrable Securities covered 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in clause (ii) of this Section 5, upon discovery that, or upon of the happening of any event as a result of which, Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of any Selling Holdersuch seller, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to an amended or an amendment of such supplemented 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 misleadingmisleading in the light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xivii) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the Commission, SEC and make available to Selling Holdersits security holders, as promptly soon as practicable, an earnings statement covering the period of at least 12 months, reasonably practicable (but not more than 18 eighteen months, beginning with the first day of the Company’s first full quarter ) after the effective date of such the registration statement, which an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 the rules and regulations promulgated thereunder;
(xiiviii) cooperate with use its best efforts to list such Registrable Securities on any securities exchange on which the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law)Common Stock is then listed, if necessary or appropriate, representing securities sold such Registrable Securities are not already so listed and if such listing is then permitted under any registration statementthe rules of such exchange, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s provide a transfer agent prior to and registrar for such Registrable Securities covered by such registration statement not later than the effectiveness effective date of such registration statement a supply of such certificates as necessary or appropriatestatement;
(xiiiix) have appropriate officers enter into such customary agreements (including an underwriting agreement in customary form) and take such other actions as sellers of a majority of such Registrable Securities or the Company prepare and make presentations at any “road shows” and before analysts and rating agenciesunderwriters, as if any, reasonably request in order to expedite or facilitate the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling disposition of the such Registrable Securities;
(xivx) if requested by any Selling Holders obtain a "cold comfort" letter or any underwriter, promptly incorporate letters from the Company's independent public accountants 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” customary form and covering matters of the type customarily covered by "cold comfort" letters as the seller or sellers of a majority of such Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRASecurities shall reasonably request; and
(xvixi) otherwise use commercially reasonable efforts make available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to comply with 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 applicable rules pertinent financial and regulations other records, pertinent corporate documents and properties of the Commission Company, and cause all reporting requirements under the rules and regulations of the Exchange ActCompany's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement. The Company may require each Selling Holder and each underwriter, if any, seller of Registrable Securities as to which any registration is being effected to furnish the Company in writing with such information regarding each Selling Holder or underwriter such seller and pertinent to the disclosure requirements relating to the registration and the distribution of such Registrable Securities 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 the event that the offering writing. Each Holder of Registrable Securities is to be made by or through an underwriteragrees that, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in clause (vi) of this Section 3.6(a)(ix)5, such Selling Holder shall will forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by clause (vi) of this Section 3.6(a)(ix) 5, and, if so directed by the Company, such Holder will deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, copies then in such Selling Holder’s possession 's possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event the Company shall give any such notice, any applicable 60-day the period during which such registration statement must remain effective pursuant to mentioned in clause (ii) of this Agreement Section 5 shall be extended by the number of days during the period from and including the date of the giving of a such notice regarding the happening pursuant to clause (vi) of an event of the kind described in this Section 3.6(a)(ix) to 5 and including the date when all each seller of Registrable Securities covered by such Selling Holders registration statement shall receive such a have received the copies of the supplemented or amended prospectus and such prospectus shall have been filed with the Commissioncontemplated by clause (vi) of this Section 5.
Appears in 2 contracts
Sources: Contribution Agreement (Red Lion Hotels Inc), Registration Rights Agreement (Red Lion Hotels Inc)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use all commercially reasonable efforts to effect the or cause a registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 this Agreement and 3.2at such times as customarily occur in registered offerings or shelf takedowns, as applicable, the Company shall as promptly as practicable (in each case, to the extent applicable):will:
(ia) Use all commercially reasonable efforts to prepare and file with the Commission SEC, a registration statement to effect such registration, cause such registration statement to become effective at within the earliest possible date permitted under the rules and regulations of the Commissiontime periods specified herein, and thereafter 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 (24) months after such registration statement becomes effective with respect to registrations pursuant to the terms of this Agreement; providedSection 2(a), however, in every case as any such period may be extended pursuant to Section 5(h) or Article 7 hereto (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 replace a shelf registration statement relating thereto; provided, further that before filing such filed on Form S-1 with a shelf registration statement or any amendments thereto, filed on Form S-3 as and when the Company will furnish becomes eligible to file S-3 registration statements as long as such a shelf registration statement filed on Form S-1 remains effective until such time as the counsel selected by the holders of Registrable Securities which are to be included in such replacement shelf registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessstatement filed on Form S-3 becomes effective);
(iib) prepare Prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for such period of time required by Section 5(a) above, as such period may be extended pursuant to Section 5(h) or Article 7 hereto;
(c) Within a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the Holders of the Registrable Securities being sold and to comply the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the Holders of the Registrable Securities being sold or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the 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 incorporated by reference into a registration statement or a prospectus, provide copies of such document to counsel for the Holders and underwriters; fairly consider such reasonable changes in such document prior to or after the filing thereof as counsel for such Holders or such underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
(e) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until during the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in period during which any such registration statement or (i) in the case of a Demand Registration pursuant is required to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes be effective;
(iiif) furnish Furnish to each Selling any Holder and each underwriterany underwriter of Registrable Securities, if any, of the securities being sold by such Selling Holder (i) such number of copies (including manually executed and conformed copies copies) of such registration statement and of each amendment thereof and supplement thereto (in each case including all annexes, appendices, schedules and exhibits), (ii) such number of copies of the prospectus contained prospectus, used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and any summary the final prospectus), and (iii) and any such number of copies of other prospectus filed under Rule 424 under the Securities Actdocuments, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents each case as such Selling Holder and underwriter, if any, or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerrequest;
(ivg) use Use all commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement under such other the securities laws or “blue sky sky” laws of such jurisdictions states of the United States as any Selling Holder and or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holderjurisdictions; provided, except however, that the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdictionsubject;
(vh) use Cooperate with the Holders of the Registrable Securities being sold and the sole underwriter or managing underwriter of an underwritten offering shares, if any, to facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the Holders of the Registrable Securities being sold or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five days prior to any sale of such shares;
(i) Use, as soon as practicable after the effectiveness of the registration statement, commercially reasonable efforts to cause such 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 with, or approved by by, such other United States public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;
(viij) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for Use its commercially reasonable best efforts to list the Company, covering the matters customarily securities 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 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 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 Holder, confirm such Inspector notification in connection with such registration statement; providedwriting, 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 when a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the a registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request been declared effective by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
SEC, (3ii) of the issuance by the Commission 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 by any Person for that such or a similar purpose;
, (4iii) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ixiv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the registration statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (v) of the Company’s first full quarter after determination that the effective date filing of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 Registration Statement shall be necessary or appropriate. Upon the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in clause (iv) or (v) of this Section 3.6(a)(ix5(l), such Selling Holder the Holders shall forthwith discontinue such Selling Holder’s any offer and disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 3.6(a)(ix) which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, all copies, copies (other than permanent file copies, ) of the defective prospectus covering such Registrable Securities which are then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable SecuritiesHolders’ possession. In the event If the Company shall give such noticeprovide any notice of the type referred to in the preceding sentence, any applicable 60-day the period during which such the registration statement must remain statements are required to be effective pursuant to this Agreement as set forth under Section 5(a) shall be extended by the number of days during the period from and including the date of giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) is provided, to and including the date when all such Selling Holders shall receive have received copies of the corrected prospectus; and
(m) Enter into such a supplemented agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or amended prospectus facilitate the disposition of such Registrable Securities (including, in the case of an underwritten offering, underwriting agreements in customary form, and such prospectus shall have been filed including provisions with respect to indemnification and contribution in customary form and consistent with the Commissionprovisions relating to indemnification and contribution contained herein), and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by any Holder of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company’s compliance with this Agreement including, without limitation, using all commercially reasonable efforts to cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities 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 letter can not be obtained through the exercise of all commercially reasonable efforts, cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the Company’s financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such accountants under the then applicable standards of the Association of Independent Certified Accountants with respect to such registration statement. In addition, the Company shall furnish to the Holders of Registrable Securities being included in any registration hereunder an opinion of counsel in substance and scope to that customarily delivered to underwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (Graham Packaging Co Inc.), Registration Rights Agreement (Graham Packaging Co Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the In connection with any registration of any ----------------------- Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Article VI, the Company shall will, as promptly soon as practicable (in each case, to the extent applicable):---------- reasonably practicable:
(ia) prepare and file with the Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant until the earlier of such time as all Registrable Securities subject to such registration statement have been disposed of or the terms expiration of this Agreementone hundred eighty (180) days; provided, however, that that: -------- -------
(i) before the Company may discontinue initial filing of 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 theretostatement, the Company will furnish to the counsel selected all Holders covered by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) statement, their counsel, and the underwriters, if any, and their counsel, copies of all such documents proposed to be filedfiled at least ten (10) days prior thereto, which documents will be subject to the review 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 such registration statement, their counsel, and the underwriters, if any, and their counsel, copies of all such review documents proposed to be conducted with filed a reasonable promptnessperiod of time (in light of the nature of the amendments or changes contained therein, which shall in every event be at least one (1) day and shall never be required to be more than ten (10) days) prior thereto, which documents will be subject to the reasonable review, within such period, of such Holders, their counsel and the underwriters;
(iib) prepare and file with the Commission such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective 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 until the earlier of such time as all of such securities Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 one hundred eighty (180) days after (except with respect to registrations effected on Form S-3 or any successor form, as to which no such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveperiod shall apply);
(iiic) 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 and prospectus (including each including, without limitation, a 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 ActAct (in each case including all exhibits) and each amendment or supplement thereto, and any Issuer Free Writing Prospectus and together with such other documents as such Selling any 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 sellerrequest;
(ivd) use its commercially reasonable best efforts to register or to qualify such the Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions within the United States and Puerto Rico as any Selling each Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably requestrequests, and take any do such other action which acts and things as may be reasonably necessary or advisable required of it to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions jurisdiction of the Registrable Securities owned securities covered 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 jurisdictionregistration statement;
(ve) otherwise use its commercially reasonable best efforts to cause 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 Registrable registration statement, which earnings statement will satisfy the provisions of Section 11
(a) of the 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 MarketAct;
(vif) use commercially reasonable efforts provide and cause to cause such be maintained a transfer agent and registrar for 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 from and after a date not later than the Selling Holder(s) thereof to consummate the disposition effective date of such Registrable Securitiesregistration statement;
(viig) 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 if requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of underwriters for any such Person which does not satisfy the conditions for receipt underwritten offering or Registrable Securities on behalf 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 Holder pursuant to a subpoena or other order from a court of competent jurisdictionregistration requested under Section 6.01, the Company shall not be required to provide any information under this subparagraph (viii) if then (i) the Company believeswill enter into an ------------ underwriting agreement with such underwriters for such offering, after consultation 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 counsel for respect to secondary distributions, including, without limitation, provisions with respect to indemnities and contribution as are reasonably satisfactory to such underwriters and the CompanyHolders; (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, that to do so would cause and the other agreements on the part of, the Company to forfeit an attorney-client privilege 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 make any representations or warranties to or agreements with the Company or the underwriters other than reasonable and customary representations, warranties or agreements regarding such Holder, such Holder's Registrable Securities, such Holder's intended method or methods of disposition, and any other representation required by law;
(h) furnish, at the written request of any Holder, on the date that was applicable such Registrable Securities are delivered to the underwriters for sale pursuant to such information or (ii) registration, or, if either (A) such Registrable Securities are not being sold through underwriters, on the Company has requested and been granted from date that 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 registration statement with respect to such Registrable Securities becomes effective, (i) or (ii) an opinion, in form and substance reasonably satisfactory to such holder Holders and addressing matters customarily addressed in underwritten public offerings, 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 counsel representing the Company for the purposes of such Records is sought in a court registration (who will not be an employee of competent jurisdiction, give notice to the Company and allow the Companywho will be satisfactory to such Holders), at its expense, which opinion will be addressed to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, and to the 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 following events:
(1) the filing of the registration statementCompany, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment addressed to the registration statement underwriters, if any, and to the selling Holders making such request (and, with respect if such accountants refuse to deliver the Comfort Letter to such Holders, then the Comfort Letter will be addressed to the registration statement or any post-effective amendment thereto, when Company and accompanied by a letter from such accountants addressed to such Holders stating that they may rely on the same has become effective;
(2) any request by the Commission for amendments or supplements Comfort Letter addressed to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statementCompany); and
(5i) during the receipt by period when the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto registration statement is required to be delivered under the Securities Acteffective, upon discovery that, or upon notify each selling Holder of the happening of any event as a result of which, which the prospectus included in such the registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Holder, promptly and prepare and furnish a supplement or amendment 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 Registrable Securities, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;
(x) make every reasonable effort . It will be a condition precedent to obtain the withdrawal obligation of the Company to take any action pursuant to this Article VI in respect of the Registrable Securities ---------- that are to be registered at the request of any order suspending Holder that such Holder furnish to the effectiveness Company such information regarding the Registrable Securities held by such Holder and the intended method of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, disposition thereof as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning is legally required in connection with the first day of action taken by the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the . The managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriterunderwriters, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 to be registered pursuant to this Agreement, Section 6.01 or 6.03 will be selected by the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers ------------ ---- Holders of such Registrable Securities), unlegended certificates representing ownership a majority 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 theretoso registered.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Securities Exchange and Purchase Agreement (Fresh America Corp), Securities Exchange and Purchase Agreement (Fresh America Corp)
Registration Procedures. (a) If In connection with each Registration, and whenever in accordance with the Company is required to use commercially reasonable efforts to effect intended method or methods of distribution of the registration of any Registrable Securities under the Securities Act Registered Shares as provided described in Sections 3.1 and 3.2such Registration, the Company shall shall, as promptly soon as reasonably practicable (and, in each caseany event, subject to the extent applicableterms of this Agreement, including, without limitation, Section 3.01(a), at or before the time required by applicable laws and regulations):
(i) prepare and file with the Commission as provided herein a registration statement with respect to effect such registration, Registered Shares on a registration form appropriate for such registration and use its reasonable best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementpromptly; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further PROVIDED that before filing such a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by Stockholder and the holders of Registrable Securities which are managing underwriter or underwriters (if the Demand Registration pertains to be included in such registration (“Selling Holders”an underwritten offering) draft copies of all such documents proposed to be filedfiled at least three days prior to such filing, which documents will be subject to the reasonable review of such counselthe Stockholder, the managing underwriter or underwriters (if the Demand Registration pertains to an underwritten offering), and their respective agents and representatives. In the event that the Company proposes to include in any Registration information concerning or relating to the Stockholder to which the Stockholder shall reasonably object, the Company and the Stockholder shall cause their respective senior executives to discuss the Stockholder's objection and to negotiate in good faith an appropriate resolution of such review objection. The Company shall not be deemed to be conducted with reasonable promptness;in breach of the second sentence of Section 3.01(a) as the result of the parties' failure to conclude such discussions during the 60 day period referred to therein.
(ii) upon request by the Stockholder, furnish without charge to the Stockholder and the managing underwriter or underwriters, if any, thereof, a reasonable number of copies of the Registration and each amendment and supplement thereto (in each case including all exhibits thereto), each prospectus included in such Registration (including each preliminary prospectus) and any amendments or supplements thereto and any documents incorporated therein by reference;
(iii) use its reasonable best efforts to keep such Registration effective for at least 90 days (the "EFFECTIVE PERIOD"); prepare and file with the Commission such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement the Registration and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective maintain the effectiveness of the Registration for the Effective Period and to cause the prospectus (and any amendments or supplements thereto) to be filed pursuant to Rules 424 and 430A under the Securities Act and/or any successor rules that may be adopted by the Commission, as such rules may be amended from time to time; and comply with the provisions of the Securities Act with respect to the disposition of all securities Registered Shares covered by such registration statement until Registration during the earlier of such time as all of such securities have been disposed of applicable period in accordance with the intended method or methods of disposition distribution thereof, as specified in writing by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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 sellerStockholder;
(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 the Stockholder or by any sellerunderwriter, 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 the Stockholder (collectively, the “Inspectors”"INSPECTORS"), all upon reasonable request during normal business hours, financial and other records, records and pertinent corporate documents and properties of the Company, provide the Inspectors with opportunities to discuss the business of the Company (collectivelywith its officers, and provide opportunities to discuss the “Records”)business of the Company with the independent public accountants who have certified its most recent annual financial statements, as shall be in each case to the extent but only to the extent reasonably necessary to enable them the Stockholder or any underwriter retained by the Stockholder to exercise their due diligence responsibilityconduct a "reasonable investigation" for purposes of Section 11(a) of the Securities Act. The Stockholder agrees, and the Stockholder shall cause each Inspector to agree, that records that the Company’s officersCompany determines, directors in good faith, to be confidential and employees to supply all information requested that it notifies the Inspectors are confidential shall not be disclosed by the Stockholder or any such Inspector, or used by the Stockholder or an Inspector for a purpose other than as described in connection with such registration statement; provided, however, that, the preceding sentence unless (1) the disclosure of such Records records is necessary to avoid or correct a misstatement of a material fact or omission to state a material fact in the registration statement or Registration, (2) the release disclosure of such Records records is ordered pursuant to a subpoena required by any court or other order from a court of competent jurisdictiongovernmental body with jurisdiction over the Stockholder or such Inspector, 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 (ii3) if either (A) all of 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 records has been made generally available to the Company; and provided, further, that each Holder public without any fault on the part of Registrable Securities the Inspector. The Stockholder agrees that it will, upon learning that disclosure of such Records records is sought in a court of competent jurisdictionjurisdiction or by any governmental body, promptly give prior notice to the Company and allow the Company, at its expense, to undertake appropriate action (and the Stockholder shall cooperate with and assist the Company as requested in taking such action) to prevent disclosure of the Records those records deemed confidential;
(viiiv) promptly notify in writing each Selling Holder the Stockholder and the managing underwriter or underwriters, if any, of the following events:
thereof, after becoming aware thereof, (1) when the filing of the registration statement, the Registration or any related prospectus or any prospectus amendment or supplement related theretohas been filed, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement Registration or any post-effective amendment theretoamendment, when the same has become effective;
, (2) of any request by the Commission for amendments or supplements to the registration statement Registration or the related prospectus or for additional information;
, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement Registration or the initiation of any proceedings by any Person for that purpose;
, (4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities the Registered Shares for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon after becoming aware thereof, within the Effective Period, of the happening of any event as a result which makes any statement in the Registration or any post-effective amendment thereto, prospectus or any amendment or supplement thereto, or any document incorporated therein by reference untrue in any material respect or which requires the making of which, any changes in the Registration or post-effective amendment thereto or prospectus included in such registration statement, as then in effect, includes an or amendment or supplement thereto so that they will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at (in the request case of any Selling Holderprospectus, promptly prepare and furnish to such seller a reasonable number in the light of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein circumstances under which they were made) not misleading;
(xvi) make every during the Effective Period, use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statementthe Registration or any post-effective amendment thereto;
(xivii) otherwise use commercially its reasonable best efforts to comply with all applicable rules register or qualify the Registered Shares for offer and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date sale under such securities or "blue sky" laws of such registration statementstates or other U.S. jurisdictions as the Stockholder and the managing underwriter or underwriters, which earnings statement if any, thereof shall satisfy reasonably request in writing; PROVIDED that the provisions Company shall not be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction where it would not otherwise be required to qualify but for the requirements of this Section 11(a3.04(a)(vii), or (2) consent to general service of the Securities Act and Rule 158 thereunderprocess in any such jurisdiction;
(xiiviii) use its reasonable best efforts to cause the Registered Shares to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary by virtue of the markets on which the Registered Shares are listed or quoted to enable the Stockholder to consummate the disposition of such Registered Shares;
(ix) cooperate with the sellers Stockholder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (representing such Registered Shares to be sold, which certificates shall not bear any restrictive legends unless except as required under applicable by law), if necessary or appropriate, representing securities sold under any registration statement, ; and enable such securities Registered Shares to be in such denominations and registered in such names as the managing underwriter or such sellers underwriters may request and keep available and make available in writing at least two business days prior to any sale of the Registered Shares to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriateunderwriters;
(xiiix) have appropriate officers enter into such agreements (including, if the offering is an underwritten offering, an underwriting agreement) containing such provisions as are customary in transactions of such kind and are not materially inconsistent with the terms of this Agreement, and take such other actions as are reasonably necessary in connection therewith in order to expedite or facilitate the disposition of such Registered Shares; and (1) obtain an opinion or opinions of legal counsel to the Company (which counsel may be internal counsel for the Company unless the managing underwriter or underwriters shall otherwise reasonably request) in customary form and covering matters of the Company prepare and make presentations at any “road shows” and before analysts and rating agenciestype customarily covered by such opinions, as the case may be, and otherwise use its reasonable best efforts addressed to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing such managing underwriter or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriterunderwriters, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Stockholder and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 dated the date of giving of a notice regarding the happening of an event closing of the kind described in Section 3.6(a)(ix) to sale of the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.Registered Shares relating thereto; and
Appears in 2 contracts
Sources: Investor Agreement (Veeco Instruments Inc), Investor Agreement (Fei Co)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts by the provisions hereof to effect the registration of any the Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Act, the Company shall will, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) prepare and file with the Commission SEC a registration statement with respect to effect such registrationsecurities, cause such registration statement promptly as possible respond to become effective at any comments received from the earliest possible date permitted under the rules SEC and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant for the period of the distribution contemplated thereby (determined as herein provided), and promptly provide to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) Purchaser copies of all such documents proposed to be filed, which documents will be subject to the review filings and SEC letters of such counsel, and such review to be conducted with reasonable promptnesscomment;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the registration statement and to keep such registration statement effective until the earlier of: (i) six months after the latest exercise period of such time as 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 securities have been disposed of registration statement in accordance with the Purchaser's intended methods method of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after for such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveperiod;
(iiic) 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), Purchaser such number of copies of the prospectus contained in such registration statement and the prospectus included therein (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under as 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, Purchaser reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned securities covered by such sellerregistration statement;
(ivd) use its commercially reasonable efforts to register or qualify such the Purchaser's Registrable Securities covered by such registration statement under such other the securities laws or "blue sky sky" laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably requestPurchaser, 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 Holderprovided, except however, that the Company shall not for any such purpose be required to qualify generally to do transact business as a foreign corporation in any jurisdiction wherein where it would is not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by list 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 any securities exchange on which the Selling Holder(s) thereof to consummate Common Stock of the disposition of such Registrable SecuritiesCompany is then listed;
(viif) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for immediately notify 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event of which the Company has knowledge as a result of which, which the prospectus included contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any 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 purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in light of the circumstances then existing; and
(xg) make every reasonable effort to obtain available for inspection by the withdrawal of Purchaser and any order suspending attorney, accountant or other agent retained by the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with Purchaser, all applicable rules publicly available, non-confidential financial and regulations of the Commissionother records, pertinent corporate documents and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day properties of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to cause the Company’s transfer agent prior 's officers, directors and employees to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agenciesall publicly available, as the case may be, and otherwise use its reasonable best efforts to cooperate as non-confidential information reasonably requested by the Selling Holders and the underwriters in the offeringattorney, marketing accountant or selling agent of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementPurchaser.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Laurus Master Fund LTD), Registration Rights Agreement (Cycle Country Accessories Corp)
Registration Procedures. The following provisions shall apply to registration statements filed pursuant to Section 2:
(a) If and whenever At or before the Company is required to use commercially reasonable efforts to effect Effective Time of the registration of any Registrable Securities under Exchange Offer or the Securities Act Shelf Registration Statement, as provided in Sections 3.1 and 3.2the case may be, the Company shall 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 promptly soon as reasonably practicable (in each case, to the extent applicableor as otherwise specified herein):
(i) prepare and file with the Commission a registration statement with respect to effect such registrationthe Shelf Registration Statement on any form which may be utilized by the Company and which shall permit the disposition of the Registrable Debentures in accordance with the intended method or methods thereof, as specified in writing by the holders of the Registrable Debentures, and use its reasonable best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessas soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference included therein as may be necessary to keep effect and maintain the effectiveness of such registration statement effective for the period specified in Section 2(b) and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to comply the 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 to all matters within the 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 until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller 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 sellers thereof 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 or (i) the prospectus included therein or in the case of a Demand Registration pursuant an amendment to Section 3.1, the expiration of 60 days after such registration statement becomes effectiveor an amendment or supplement to such prospectus in order that such registration statement, prospectus, amendment or (ii) in supplement, as the case may be, does not contain an untrue statement of a Piggyback Registration pursuant material fact or omit to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) 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 state therein a material fact required to qualify generally be stated therein or necessary to do business as a foreign corporation in any jurisdiction wherein it would make the statements therein 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 Marketmisleading;
(vi) use commercially reasonable efforts to cause such promptly notify the selling holders of Registrable Securities covered by such registration statement to be registered with Debentures, the sales 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 (andplacement agent, if necessaryany, 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 in writing each Selling Holder therefor and the managing underwriter or underwriters, if any, of thereof named in the following events:
Shelf Registration Statement or a supplement thereto, and confirm such notice in writing, (1A) the filing of the when such registration statement, statement or the prospectus included therein or any prospectus amendment or supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement has been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2B) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission of any stop order suspending the effectiveness of the such registration statement or the initiation or written threat of any proceedings by any Person for that purpose;
, (4C) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any the Registrable Securities Debentures for sale under the securities or blue sky laws of in any jurisdiction or the initiation or written threat of any proceeding for such purpose;
, or (ixD) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery thatthat such registration statement, prospectus, prospectus amendment or upon supplement or post-effective amendment does not conform in all material respects to the happening applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder;
(vii) use its reasonable best efforts to obtain the withdrawal of any event order suspending the effectiveness of such registration statement or any post-effective amendment thereto at the earliest practicable date;
(viii) 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 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, 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 result holder of whichRegistrable 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 included in such registration statementstatement (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 by each such holder and by any such agent and underwriter, in each case in the form most recently provided to such person by the Company in connection with the offering and sale of the Registrable Debentures covered by the prospectus (including any such preliminary or summary prospectus) or any supplement or amendment thereto; and
(x) use its reasonable best efforts to (A) register or qualify the Registrable 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 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 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 (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 foregoing obligations is dependent upon information provided or to be provided by a party other than the Company, such obligation shall be subject to the provision of such information by such party; provided that the Company shall use its reasonable best efforts to obtain the necessary information from any party responsible for providing such information.
(c) In the event that the Company would be required, pursuant to Section 3(b)(vi)(D), to notify the selling holders of Registrable Debentures, the placement or sales agent, if any, therefor or the managing underwriters, if any, thereof named in the Shelf Registration Statement or a supplement thereto of the existence of the circumstances described therein, the Company shall promptly prepare and furnish to each such holder, to each placement or sales agent, if any, and to each such underwriter, if any, 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 all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder. Each holder of Registrable Debentures agrees that upon receipt of any notice from the Company, pursuant to Section 3(b)(vi)(D), such holder shall forthwith discontinue (and cause any placement or sales agent or underwriters acting on their behalf to discontinue) the disposition of Registrable Debentures pursuant to the registration statement applicable to such Registrable Debentures until such holder (i) shall have received copies of such amended or supplemented prospectus and, if so directed by the Company, such holder shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in effectsuch holder's possession of the prospectus covering such Registrable Debentures at the time of receipt of such notice or (ii) shall have received notice from the Company that the disposition of Registrable Debentures pursuant to the Shelf Registration Statement may continue.
(d) The Company may require each holder of Registrable Debentures as to which any registration pursuant to Section 2(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, includes 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, at the request of any Selling Holder, and promptly prepare and to furnish to such seller a reasonable number of copies of a supplement the Company any additional information required to correct and update any previously furnished information or an amendment of such prospectus as may be necessary required so that, as thereafter delivered to the purchasers of such Registrable Securities, that such prospectus shall not include 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;.
(xe) make every reasonable effort 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 obtain resell any of the withdrawal Debentures that have been reacquired by any of any order suspending them except pursuant to an effective registration statement under the effectiveness of such registration statement;Securities Act.
(xif) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning In connection with the first day Company's obligations with respect to the registration of Exchange Debentures as contemplated by Section 2(a) (the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law"Exchange Registration"), if necessary applicable, the Company shall, as soon as reasonably practicable (or appropriate, representing securities sold under any registration statement, as otherwise specified):
(i) prepare and enable file with the Commission such securities to be in such denominations amendments and registered in such names as the managing underwriter or such sellers may request and keep available and make available supplements to the Company’s transfer agent prior Exchange Offer Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such registration statement a supply of such certificates thereof for the periods and purposes contemplated in Section 2(a) hereof and as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested be required by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use commercially reasonable efforts to comply with all 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 prospectus included therein (as then amended or supplemented), in conformity in all reporting material respects with the requirements under 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 Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.Debentures;
(bii) Without limiting any promptly notify each broker-dealer that has requested or received copies of the foregoing, prospectus included in the event that Exchange Offer Registration Statement, and confirm such advice in writing, (A) when any prospectus amendment or supplement or post-effective amendment to the offering of Registrable Securities is to be made by or through an underwriterExchange Offer Registration Statement has been filed, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representationsand, 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 post-effective amendment to the underwriterExchange Offer Registration Statement, if any when the same has become effective, (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership B) of the Registrable Securities being sold (unless, in issuance by the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to Commission of any stop order suspending the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar effectiveness of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt Exchange Offer Registration Statement or the initiation or threatening of any notice from proceedings for that purpose, (C) of the receipt by the Company of any notification with respect to the happening suspension of the qualification of the Exchange Debentures for sale in any United States jurisdiction or the initiation or threatening in writing of any event of proceeding for such purpose, or (D) at any time when a prospectus is required to be delivered under the kind described in Section 3.6(a)(ix)Securities Act, such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to that the applicable registration statement and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) andExchange Offer Registration Statement, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cinergy Corp), Registration Rights Agreement (Cinergy Corp)
Registration Procedures. (a) If and whenever In the case of each registration, qualification, or compliance effected by the Company is required pursuant to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 3 hereof, the Company shall will keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as promptly as practicable (in each case, to the extent applicable):initiation of each registration, qualification, and compliance and as to the completion thereof. At its expense with respect to any registration statement filed pursuant to Section 3, the Company will:
(ia) prepare and file with the Commission with respect to such Registrable Securities, a registration statement to effect such registrationon Form S-2 or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate, cause such registration statement to become effective at and which form shall be available for the earliest possible date permitted under the rules and regulations sale of the CommissionRegistrable Securities in accordance with the intended method(s) of distribution thereof, and thereafter use its commercially reasonable efforts to cause such registration statement to become and remain effective at least for a period ending with the first to occur of (i) the sale of all Registrable Securities covered by the registration statement, (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 Section 3(a) is declared effective by the terms of this AgreementCommission (in either case, the "Effectiveness Period"); provided, however, if at 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 continue until terminated pursuant to clause (i) or (ii); and not later than two business days before filing with the Commission a registration statement or prospectus or any amendments or supplements thereto, the Company may discontinue any registration shall (i) furnish to each Holder a copy of its securities which are not Registrable Securities at any time prior to the effective date "Plan of Distribution" and "Selling Shareholder" portions of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, and the Company will furnish to the counsel selected by the holders other portions of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filedfiled that the Company considers not to contain material, which documents will non-public information (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be subject filed and (ii) notify each Holder of Registrable Securities covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the review entry of such counsel, and such review stop order or to be conducted with reasonable promptnessremove it if entered;
(iib) if a registration statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;
(c) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective during the Effectiveness Period (but in any event at least until expiration of the 90-day period referred to in Section 4(3) of the Securities Act and to Rule 174, or any successor thereto, thereunder, if applicable), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement;
(d) furnish, without charge, to each Holder of Registrable Securities covered by such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such reasonable number of conformed copies of such registration statement and of (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto as such Holder may request, (in each case including all exhibits), ii) such number of copies of the prospectus contained 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) as such Holders may request, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and (iii) 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 sellerHolder, but only during the Effectiveness Period;
(ive) use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other applicable securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of Registrable Securities covered by such registration statement reasonably requests as may be necessary for the marketability of the securities being sold Registrable Securities (such request to be made by such Selling Holder shall reasonably request, the time the applicable registration statement is deemed effective by the Commission) and take do any and all other action acts and things 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 ; provided that the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause paragraph (ive), (ii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general (iii) consent to general service of process in any such jurisdiction;
(vf) use commercially reasonable efforts to cause as promptly as practicable after becoming aware of such event, notify each Holder of 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event which comes to the Company's attention if as a result of which, such event the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller a reasonable number of copies of Holder a supplement or amendment to or an amendment of such prospectus as may be necessary (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, 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;
(xg) make every reasonable effort comply, and continue to obtain comply during the withdrawal of any order suspending the effectiveness of period that such registration statement;
(xi) otherwise use commercially reasonable efforts to comply statement is effective under the Securities Act, in all material respects with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers Exchange Act and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and with respect to the disposition of all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required securities covered by such registration statement.;
(bh) Without limiting any as promptly as practicable after becoming aware of the foregoingsuch event, in the event that the offering notify each Holder of Registrable Securities is being offered or sold pursuant 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 Registration Statement of the Company contained hereinissuance by the Commission of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(i) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for permit the account of, or on behalf of, such issuers. In connection with any offering Holders of Registrable Securities registered pursuant 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 this Agreementreview 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 shall furnish determines in good faith to be confidential, and of which determination such Holder is so notified at the underwritertime such Holder receives such information, if any unless (or, if no underwriter, i) the sellers disclosure of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, record is necessary to avoid or correct a misstatement or omission in the Company’s sole discretion, Registration Statement and a reasonable time prior to such Registrable Securities are to be issued in uncertificated form pursuant to disclosure the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from shall have informed the Company of the happening need to so correct such misstatement or omission and the Company shall have failed to correct such misstatement of omission, (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 event other agreement. The Company shall not be required to disclose any confidential information in such records to any Inspector until and unless such Inspector shall have entered into a confidentiality agreement with the Company with respect thereto, substantially in the form of the kind described in this Section 3.6(a)(ix4(j), which agreement shall permit such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant Inspector to disclose records to the applicable registration statement 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 prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver to allow the Company, at the Company’s 's expense, all copiesto undertake appropriate action to prevent disclosure of, other than permanent file copiesor to obtain a protective order for, then the records deemed confidential. The Company shall hold in such Selling Holder’s possession confidence and shall not make any disclosure of the prospectus current at the time of receipt of such notice relating information concerning a Holder provided to such Registrable Securities. In the event the Company shall give such notice, any applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement shall be extended 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 number Staff in its review of days 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 best efforts to cause all the Registrable Securities covered by the Registration Statement to be quoted on the OTC Bulletin Board or such other principal securities market on which securities of the same class or series issued by the Company are then listed or traded;
(l) provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times;
(m) cooperate with the Holders of Registrable Securities 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 period 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 date of giving of a notice regarding the happening of an event right of the kind described Holders to sell Registrable Securities by reason of the limitations set forth in Section 3.6(a)(ixRegulation M under the 1934 Act; and
(o) take all other reasonable actions necessary to expedite and facilitate disposition by the Holders of the Registrable Securities pursuant to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Nestor Inc), Registration Rights Agreement (Nestor Inc)
Registration Procedures. (a) If and whenever the Company is required to use its commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Section 2, the Company shall will, as promptly soon as practicable (in each case, to the extent applicable):practicable:
(i) 2.6.1. prepare and file with the Commission a SEC the requisite registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use its commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnesseffective;
(ii) 2.6.2. prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective until the completion of the distribution of the Registrable Securities covered by such registration statement) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveperiod;
(iii) 2.6.3. furnish to each Selling Holder seller of such Registrable Securities and each underwriter, if any, of the securities being sold by such Selling Holder underwriter such number of conformed 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 prospectus contained 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder seller may reasonably request;
2.6.4. promptly notify each Shareholder that holds Registrable Securities covered by such registration statement, (i) when such registration statement or any post-effective amendment or supplement thereto becomes effective, (ii) 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 entry of such stop order or to remove it if entered, or the initiation of any proceedings for that purpose), or (iii) of the happening of any event as a result of which the registration statement, as then in effect, the prospectus related thereto or any document included therein by reference includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made and 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;
2.6.5. promptly furnish counsel for each underwriter, if any, may reasonably and for the selling Shareholders of Registrable Securities, copies of any written request in order by the SEC or any state securities authority for amendments or supplements to facilitate the public sale a registration statement and prospectus or other disposition of the Registrable Securities owned by such seller;for additional
(iv) 2.6.6. use commercially reasonable efforts to register or qualify obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible time;
2.6.7. use commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on the 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 the listing or authorization for quotation of such securities is then permitted under the rules of such exchange or the NASD;
2.6.8. enter into an underwriting agreement with the underwriter of such offering in the form customary for such underwriter for similar offerings, including such representations and warranties by the Company, provisions regarding the delivery of opinions of counsel for the Company and accountants’ letters, provisions regarding indemnification and contribution, and such other terms and conditions as are at the time customarily contained in such underwriter’s underwriting agreements for similar offerings (the sellers of Registrable Securities which are to be distributed by such underwriter(s) may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriter(s) shall also be made to and for the benefit of such sellers of Registrable Securities);
2.6.9. make available for inspection by representatives of the selling Shareholders who hold Registrable Securities and any underwriters participating in any disposition pursuant hereto and any counsel or accountant retained by such Shareholders or underwriters, all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, underwriter, counsel or accountant 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 laws 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 or comparable statement and to require the insertion therein of material, furnished to the Company in writing, that in the judgment of such holder, as aforesaid, should be included; and
2.6.11. make reasonably available its employees and personnel, and otherwise provide reasonable assistance, to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. The Company shall not be required to register or qualify any Registrable Securities covered by such registration statement under any state securities, or blue sky sky, laws of such jurisdictions other than as any Selling Holder and any underwriter it deems necessary in connection with the chosen method of the securities being sold by such Selling Holder shall reasonably request, and distribution or to take any other action which may be reasonably actions or do any other things other than those it deems necessary or advisable to enable consummate such Selling Holder distribution, 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) otherwise be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general 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 Each beneficial owner 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees 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 3.6(a)(ix)2.6.4, such Selling Holder shall beneficial owner will forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holderbeneficial owner’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) 2.6.4, and, if so directed by the Company, such beneficial owner will deliver to the Company, Company (at the Company’s expense, ) all copies, other than permanent file copies, copies then in such Selling Holderbeneficial owner’s possession possession, of the prospectus current at the time of receipt of covering such notice relating Registrable Securities that was in effect prior to such Registrable Securities. In the event the Company shall give such notice, 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented amendment or amended prospectus and such prospectus shall have been filed with the Commissionsupplement.
Appears in 2 contracts
Sources: Merger Agreement (Workstream Inc), Merger Agreement (Workstream Inc)
Registration Procedures. (a) If Subject to the limitations set forth elsewhere herein, if and whenever the Company is required by the provisions of this Agreement to use commercially reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall will, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) in the case of a registration under Section 2.2 hereof, prepare and file with the Commission SEC (such filing to be made within 60 days after the initial request by the requesting Holders pursuant to Section 2.2(a) a registration statement with respect to effect such registration, cause Registrable Securities on a form appropriate to permit such registration statement Holders to become effective at sell the earliest possible date permitted under the rules Proposed Amount in accordance with such Holders' intended method of distribution and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnesseffective;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for such period as shall be requested by the Holders owning the Proposed Amount, which period shall not exceed twelve (12) months and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement during such period;; provided, however, that if such registration has been effected pursuant to Form S-3 (or any successor form), then such period of effectiveness shall be until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, 24 months or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, date that the expiration of 60 days after such registration statement becomes effectiveoffering is completed or terminated;
(iiic) furnish to each Selling Holder a single firm of counsel, initially Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, or such other counsel thereafter designated by the Holders who hold a majority of the Registrable Securities being sold (the "Holder's Counsel"), and each underwriter, if any, underwriter of the securities being sold by such Selling Holder Holders, at least 5 days prior to the filing thereof, 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 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder and underwriter, if any, counsel may reasonably request request, in substantially the form in which they are proposed to be filed with the SEC, in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerHolders;
(ivd) use commercially reasonable its 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 each underwriter of the securities being sold by such Selling Holder Holders shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder Holders and such underwriter to consummate the disposition in such jurisdictions of the such 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 where, but for the requirements of this clause (iv) d), it would not be obligated to be so qualified, to or subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(ve) 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 its 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:
(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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixf) notify each Selling Holderthe Holders owning the Proposed Amount, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, at the request of any Selling Holder, and promptly prepare and furnish to such seller Holders and each underwriter a reasonable number amount of copies of a prospectus 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 misleadingmisleading in the light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xig) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling the Holders, as promptly soon as reasonably practicable, an earnings statement covering the period of at least 12 twelve months, but not more than 18 eighteen months, beginning with the first day of the Company’s 's first full calendar quarter after the effective date of such the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiih) cooperate with enter into such agreements (including an underwriting agreement in customary form) and take such other actions as the sellers and the managing underwriter Holders shall reasonably request in order to expedite or facilitate the timely preparation disposition of such Registrable Securities;
(i) to use its best efforts to furnish to the Holders owning the Proposed Amount an opinion from the Company's counsel and delivery of certificates a "cold comfort" letter from the Company's independent public accountant (which shall not bear any restrictive legends unless required under applicable lawin accordance with SAS 72), if necessary addressed to such Holders, in customary form and covering such matters of the type customarily covered by such opinions and "cold comfort" letters, in each case for the type of offering contemplated (i.e., underwritten or appropriateself-underwritten), representing securities sold under as such Holders shall reasonably request;
(j) make available for inspection by the Holders, by any other underwriter participating in any disposition to be effected pursuant to such registration statement, and by any attorney, accountant or other agent retained by such Holders or any such underwriter, all reasonably pertinent financial and other records, reasonably pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors, employees and the independent public accountants who have audited its financial statements to supply all information reasonably requested by such Holders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided, however, that each such Holder and each such representative of such Holder, underwriter, attorney, accountant or agent must execute and deliver to the Company a confidentiality agreement in form and substance reasonably acceptable to the Company agreeing to keep any such information and records concerning the Company confidential;
(k) permit such Holders to participate in the preparation of such registration or comparable statement;
(l) at or prior to the effective date of the registration use commercially reasonable efforts to cause all Registrable Securities covered by such Registration Statement to be (i) listed on each securities exchange, if any, on which similar securities issued by the Company are then listed or (ii) authorized to be quoted on the National Association of Securities Dealers Automated Quotation System if the securities so qualify and if the Company does not then have similar securities listed on any national securities exchange; and
(m) in the case of an underwritten offering, enable such securities the Registrable Securities to be in such denominations or such number of shares and registered in such names as the managing underwriter or such sellers underwriters may request and keep available and make available to the Company’s transfer agent at least two business days prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling sale of the Registrable Securities;
(xiv) if requested . In the case of an underwritten offering, the underwriters shall be selected by any Selling the Company and reasonably acceptable to such Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to owning 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” majority of the Proposed Amount of Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriterHolders owning the Proposed Amount shall, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix)subdivision (f) above, such Selling Holder shall forthwith discontinue such Selling Holder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s Holders' receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) said subdivision and, if so directed by the Company, will deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, then in such Selling Holder’s Holders' possession of the prospectus covering such Registrable Securities current at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event the Company shall give any such notice, any applicable 60-day the period during which such registration statement must remain effective pursuant to this Agreement mentioned in subdivision (b) above shall be extended by the number of days during the period from and including the date of the giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to and including the date when all such Selling Holders shall receive such a have received the copies of the supplemented or amended prospectus contemplated by subdivisions (f) above. The Holders shall enter into such customary agreements as requested by the Company in connection with the registration of securities as contemplated by this Agreement. The Holders shall furnish to the Company in writing such information and documents regarding such prospectus Holders and the distribution of such securities as may be required to be disclosed in the registration statement in question by the rules and regulations under the Securities Act or under any other applicable securities or blue sky laws of the jurisdictions referred to in Section 2.3(d) hereof. The Company may exclude from such registration the Registrable Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request. If any such registration or comparable statement refers to any Holder by name or otherwise as the holder of any securities of the Company then such Holder shall have been filed with the Commissionright to require (i) the insertion therein of language, in form and substance satisfactory to such Holder and presented to the Company in writing, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Company's securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (General Electric Capital Corp)
Registration Procedures. (a) If and whenever in the case of the registration, qualification or compliance effected by the Company is required pursuant to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 3 hereof, the Company shall will keep each Holder reasonably advised in writing as promptly as practicable (in each case, to the extent applicable):initiation of each registration, qualification and compliance and as to the completion thereof. With respect to any registration statement filed pursuant to Section 3, the Company shall:
(i) prepare and file with the Commission with respect to such Registrable Securities, a registration statement to effect such registrationon any form which (a) the Company then qualifies for, cause such registration statement to become effective at (b) counsel for the earliest possible date permitted under Company deems appropriate, and (c) is available for the rules and regulations resale of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to in accordance with the effective date intended method(s) of the registration statement relating theretodistribution thereof; provided, further provided that no later than five (5) business days before filing such with the Commission a registration statement or prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of any registration statement, the Company will must (a) furnish to the underwriters, if any, and to Investor’s counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling HoldersInvestor’s Counsel”) copies of all such documents proposed to be filed (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed, which documents will be are subject to the review of the underwriters and such counsel, and (b) notify each Holder of Registrable Securities covered by such review registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to be conducted with reasonable promptnessprevent the entry of such stop order or to remove it if entered;
(ii) cause such registration statement to become effective prior to the Registration Deadline and remain effective at least for a period ending with the first to occur of (i) the sale of all Registrable Securities covered by the registration statement, or (ii) the availability under Rule 144 for the Holders to immediately freely resell without restriction all Registrable Securities covered by the registration statement (the “Effectiveness Period”);
(iii) if a registration statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;
(iv) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective during the Effectiveness Period and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiiv) furnish furnish, without charge, to each Selling the Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies one (1) signed copy of such registration statement and of (excluding any exhibits thereto other than applicable underwriting documents), each amendment and supplement thereto (including one (1) conformed copy to each Holder and one (1) signed copy to each managing underwriter and in each case including all exhibitsexhibits thereto), and such number of copies of the prospectus contained 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) as such Holders may request, 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 sellerHolder, but only during the Effectiveness Period;
(ivvi) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other applicable securities laws or blue sky laws of such jurisdictions as any Selling Holder Holder, and any underwriter underwriter, if any, of Registrable Securities covered by such registration statement as may be necessary for the marketability of the securities being sold Registrable Securities (such request to be made by such Selling Holder shall reasonably request, the time the applicable registration statement is deemed effective by the Commission) and take do any and all other action acts and things 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 Holdereach underwriter, except if any; provided that the Company shall is not for any such purpose be required to (a) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause Section 4(a)(vi), (ivb) be obligated to be so qualifiedregister as a securities dealer, to or (c) 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 immediately notify 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, which causes the prospectus included in such registration statement, as then in effect, includes statement to contain an untrue statement of a material fact or omits omit any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and furnish to such Holder a supplement or amendment to such prospectus (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the Investor, such prospectus does not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at unless suspension of the request of any Selling Holder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment use of such prospectus as may otherwise is authorized herein or in the event of a Blackout Period, in which case no supplement or amendment need be necessary so that, as thereafter delivered to furnished (or Exchange Act filing made) until the purchasers termination of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact suspension or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;Blackout Period; and
(xviii) make every reasonable effort comply, and continue to obtain comply during the withdrawal of any order suspending the effectiveness of period that such registration statement;
(xi) otherwise use commercially reasonable efforts to comply statement is effective under the Securities Act, in all material respects with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers Exchange Act and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and with respect to the disposition of all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required securities covered by such registration statement.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix)4(a)(vii) or of the commencement of a Blackout Period, such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4(a)(vii) hereof or notice of the end of the Blackout Period, as applicable, and, if so directed by the Company, such Holder must deliver to the CompanyCompany all copies (including, at the Company’s expensewithout limitation, any and all copiesdrafts), other than permanent file copies, then in such Selling Holder’s possession possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event the Company shall give gives any such notice, any applicable 60-day the period during which such registration statement must remain effective pursuant to this Agreement shall be mentioned in Section 4(a)(i) hereof is extended by the greater of (i) ten (10) business days or (ii) the number of days during the period from and including the date of the giving of a such notice regarding the happening of an event of the kind described in pursuant to Section 3.6(a)(ix4(a)(vii) hereof to and including the date when all each Holder of Registrable Securities covered by such Selling Holders shall receive such a registration statement has received the copies of the supplemented or amended prospectus and such prospectus shall have been filed with the Commissioncontemplated by Section 4(a)(vii) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fortified Holdings Corp.), Registration Rights Agreement (Aegis Industries, Inc.)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to effect a registration of Registrable Securities:
(a) The Company will use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC, within the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (or on such other registration statement form available to effect such registrationthe Company that permits the greatest extent of incorporation by reference of materials filed by the Company, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the CommissionExchange Act), and thereafter 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 such Registration Statement becomes effective, in the terms case of this Agreement; providedregistrations pursuant to Section 2, howeveror (2) 90 days after such Registration Statement becomes effective, that in the Company case of registrations pursuant to Section 3, in every case as any such period may discontinue any registration of its securities which are not Registrable Securities at any time prior be extended pursuant to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement subsection (h) or any amendments thereto, the Section 8.
(b) The Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement effective and for such period of time required by subsection (a), as such period may be extended pursuant to 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 until Registration Statement during the earlier of period during which any such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant Statement is required to Section 3.1, the expiration of 60 days after such registration statement becomes be effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;.
(iiid) The Company will furnish to each Selling any Holder and each underwriter, if any, any underwriter of the securities being sold by such Selling Holder Registrable Securities (1) such number of copies (including manually executed and conformed copies copies) of such registration statement Registration Statement and of each amendment thereof and supplement thereto (in each case including all annexes, appendices, schedules and exhibits), (2) such number of copies of the prospectus contained used in connection with such registration statement Registration Statement (including each preliminary prospectus, any summary prospectus and any summary prospectusthe final prospectus and including prospectus supplements), and (3) and any such number of copies of other prospectus filed under Rule 424 under the Securities Actdocuments, in conformity with each case as the requirements of the Securities Act, and any Issuer Free Writing Prospectus and Holder or such other documents as such Selling Holder and underwriter, if any, underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;request.
(ive) The Company will use commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities laws or "blue sky sky" laws of such jurisdictions states of the United States and any other jurisdiction as any Selling Holder and or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that jurisdictions; but the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdiction;subject.
(vf) use The Company will use, as soon as practicable after the effectiveness of the Registration Statement, 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 Registration Statement to be registered with with, or approved by by, such other United States and Bermuda public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;.
(viig) The Company will use commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, 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 Holder, confirm such notification in connection with an Underwritten Offeringwriting, 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) when 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement and when a Registration Statement or any post-effective amendment theretothereto has been filed with and declared effective by the SEC, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission SEC of any stop order suspending or the effectiveness coming to its knowledge of the registration statement or the initiation of any proceedings by any Person for that purpose;
, (43) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ix4) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the Registration Statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (5) of the Company’s first full quarter after 's determination that the effective date filing of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 a Registration Statement shall be necessary or appropriate. Upon the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 3.6(a)(ixclause (4), such Selling Holder the Holders shall forthwith discontinue such Selling Holder’s any offer and disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto Registration Statement covering such Registrable Securities until such Selling Holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 3.6(a)(ix) which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, Company all copies, copies (other than permanent file copies, ) of the defective prospectus covering such Registrable Securities which are then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable SecuritiesHolders' possession. In the event If the Company shall give such noticeprovide any notice of the type referred to in the preceding sentence, any applicable 60-day the period during which such registration statement must remain the Registration Statement is required by subsection (a) to be effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) is provided, to and including the date when all such Selling the Holders shall receive have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making its management available to the extent reasonably requested by the Holders to participate in marketing presentations to potential investors in connection with any underwritten offering), and in that regard, will deliver to the Holders such documents and certificates as may be reasonably requested by the Holders of a supplemented majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement, or amended prospectus and if such prospectus shall have been filed letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the CommissionCompany's financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such accountants under the then applicable standards of the American Institute of Certified Public Accountants with respect to such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Exel LTD), Registration Rights Agreement (Xl Capital LTD)
Registration Procedures. It shall be a condition precedent to the obligations of the Company and any underwriter or underwriters to take any action pursuant to this Article II that each Holder requesting inclusion in any Piggyback Underwritten Offering or Demand Registration (a “Registration”) shall furnish to the Company such information regarding such Holder, the Registrable Shares held by it, the intended method of disposition of such Registrable Shares, and such agreements regarding indemnification, disposition of such securities and other matters referred to in this Article II as the Company shall reasonably request and as shall be reasonably required in connection with the action to be taken by the Company; provided that (x) no Holder shall be required to make any representations or warranties to, or agreements with, the Company other than representations and warranties regarding such Holder and such Holder’s ownership of and title to the Registrable Shares to be sold in such offering and its intended method of distribution and (y) any liability of any such Holder under any underwriting agreement relating to such Registration shall be limited to liability arising from breach of its representations and warranties therein and shall be limited to an amount equal to the net amount received by such Holder from the sale of Registrable Shares pursuant to such Registration. With respect to any Registration which includes Registrable Shares held by a Holder, the Company shall, subject to Sections 2.01 through 2.04:
(a) If and whenever in accordance with the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act 1933 Act, as provided in Sections 3.1 and 3.2soon as reasonably practicable, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission within (x) thirty (30) days, in the case of a Form S-1, or (y) within fifteen (15) days, in the case of a Form S-3, of such request for registration by a Holder of Registrable Shares, a registration statement on the appropriate form prescribed by the Commission and use its reasonable best efforts to effect such registration, cause such registration statement to become effective at as soon as practicable thereafter; provided that the earliest possible date permitted under Company shall not be obligated to maintain such Registration effective for a period longer than the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this AgreementEffectiveness Period; provided, howeverfurther, 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 a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected Holders covered by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) statement and the underwriter or underwriters, if any, copies of or drafts of all such documents proposed to be filed, which documents will be subject to the reasonable review of such counselHolders and any underwriters named therein. Each Holder will have the opportunity to object to any information pertaining to such Holder that is contained therein and the Company will make the corrections reasonably requested by such Holder with respect to such information prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto; provided, and however, that the Company will not include any information pertaining to the Holders in any registration statement or amendment thereto or any prospectus or any supplement thereto to which Holders of a majority of the Registrable Shares covered by such review to be conducted with reasonable promptnessregistration statement shall reasonably object;
(iib) in accordance with the 1933 Act, prepare and file with the Commission such amendments (including and post-effective amendments) and supplements amendments to such registration statement and the prospectus used in connection therewith and any Exchange Act reports documents required to be incorporated by reference therein as may be necessary to keep such the registration statement effective for a period of not less than the Effectiveness Period (but not prior to the expiration of the time period referred to in Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the 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 until during the earlier of such time as all of such securities have been disposed of applicable period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in supplement to the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveprospectus;
(iiic) 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 Selling preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein as the Holder and each underwriteror underwriter or underwriters, if any, may request in order to facilitate the disposition of the securities being sold by such Selling Holder such number (it being understood that the Company consents in writing to the use of conformed copies of such the prospectus and any amendment or supplement thereto by the Holder covered by the 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 underwriterunderwriter or underwriters, if any, may reasonably request in order to facilitate connection with the public offering and sale or other disposition of the Registrable Securities owned securities covered by such sellerthe prospectus or any amendments or supplements thereto);
(ivd) use commercially reasonable efforts promptly notify such Holder, at any time when a prospectus relating thereto is required to register or qualify such Registrable Securities covered by such registration statement be delivered under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter the 1933 Act, when the Company becomes aware of the securities being sold by such Selling Holder shall reasonably request, and take happening of 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 event as a foreign corporation in any jurisdiction wherein it would not but for result of which 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 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, if necessaryas 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 other independent registered public accountant untrue statement of any subsidiary a material fact or omit to state a material fact necessary to make the statements therein, in light of the Company or any business acquired circumstances under which they were made, not misleading (and the Effectiveness Period of the registration statement may be extended by the Company number of days from which financial statements and financial data are, including the date such notice is given to the date such supplement or are required amendment to be, included in the registration statementsuch prospectus has been delivered under this Section 2.05(d));
(3e) promptly in the case of an underwritten offering, enter into and perform such customary agreements (including underwriting agreements in customary form) and make members of senior management of the Company available on a basis reasonably requested by the underwriters to participate in “road show”, analyst and investor presentations and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares)) and cause to be delivered to the underwriters opinions of counsel to the Company (and, if such registration statement includes an underwritten public offering, dated the date of the closing under the underwritten agreement), with respect to the registration statement, each supplement and amendment thereto, the prospectus included therein (including the preliminary prospectus) and such other documents related thereto in customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may reasonably request and addressed to the underwriters;
(f) in the case of an underwritten offering, make available, for inspection by any sellerseller of Registrable Shares, any underwriter participating in any disposition pursuant to any a registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”)underwriter, 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 responsibilityCompany, and cause the Company’s officers, directors directors, managers, employees and employees independent accountants to supply all information reasonably requested by any such Inspector seller, underwriter, attorney, accountant or agent that are necessary to be reviewed by such person in connection with the preparation of such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission ;
(g) in the registration statement case of an underwritten offering, if requested, cause to be delivered, at the time of the pricing of an underwritten offering and at the time of delivery of any Registrable Shares (or the release of such Records is ordered pursuant to Common Shares in connection with 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 Synthetic Secondary Transaction with respect to (isuch Registrable Shares) or (ii) such holder of Registrable Securities requesting such information agreessold pursuant thereto, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to “comfort” letters from the Company; and provided, further, that ’s independent certified public accountants addressed to each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwritersunderwriter, if any, in customary form and covering such financial and accounting matters as are customarily covered by letters of the following events:independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be;
(1h) 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 filing 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 date of the first sale of securities pursuant to such registration statement, on any national securities exchange, quotation system or other market on which the Common Shares are then listed or proposed to be listed by the Company;
(j) make generally available to its security holders an earnings statement, which need not be audited, satisfying the provisions of Section 11(a) of the 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, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration which statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effectiveshall cover said twelve (12) month period;
(2k) any request after the filing of a registration statement, (i) promptly notify each Holder covered by the Commission for amendments or supplements to the such registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending issued or, to the effectiveness Company’s knowledge, threatened by the Commission and of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) for sale under the applicable securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
and (ixii) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller a take all reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(x) make every reasonable effort actions to obtain the withdrawal of any order suspending the effectiveness of the registration statement or the qualification of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such registration statementRegistrable Shares) at the earliest possible moment;
(xil) otherwise use commercially reasonable efforts subject to comply 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 all applicable rules 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 regulations with respect to any term of the Commission, underwritten offering of the securities to be sold in such offering; and make available all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters to Selling Holders, be incorporated in such prospectus supplement or post-effective amendment;
(m) as promptly as practicable, an earnings practicable after filing with the Commission of any document which is incorporated by reference into a registration statement covering the period of at least 12 monthssuch Holder, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date deliver a copy of such registration statement, which earnings statement shall satisfy document to such Holder unless such document is available on the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderCommission’s ▇▇▇▇▇ system (or any successor electronic filing system);
(xiin) on or prior to the date on which the registration statement is declared effective, use reasonable best efforts to register or qualify, and cooperate with such Holder, the underwriter or underwriters, if any, and their counsel in connection with the registration or qualification of, the securities covered by the registration statement for offer and sale under the securities or blue sky laws of each state and other jurisdiction of the United States as the Holder or managing underwriter or underwriters, if any, requests in writing, to use reasonable best efforts to keep each such Registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) covered by the applicable registration statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject itself to taxation in any such jurisdiction or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(o) cooperate with the sellers such Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities to be sold under any the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers underwriters, if any, 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 appropriaterequest;
(xiiip) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with FINRA;
(q) use reasonable best efforts to cause the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in securities covered by the performance of any due diligence investigation by any underwriter that is required registration statement to be undertaken in accordance registered with or approved by such other governmental agencies, authorities or self-regulatory bodies within the rules and regulations of United States as may be necessary to enable the FINRA; and
(xvi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of seller or sellers thereof or the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriterunderwriter or underwriters, if any, to furnish consummate the Company in writing such information regarding each Selling Holder or underwriter and the distribution disposition of such Registrable Securities as Shares;
(r) to the extent the Company may from is a well-known seasoned issuer (within the meaning of Rule 405 under the 1933 Act) (“WKSI”) at the time any Request Notice is submitted to time reasonably request the Company pursuant to complete or amend Section 2.02 which requests that the information required by such Company file an automatic shelf registration statement (as defined in Rule 405 under the 1933 Act) (an “automatic shelf registration statement.
(b”) Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to be made by or through an underwriteron a Shelf Registration Statement, the Company shall enter into file 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 automatic shelf registration statement that covers those Registrable Shares which are requested to be registered. If the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for does not pay the account of, or on behalf of, such issuers. In connection with any offering of filing fee covering Registrable Securities registered pursuant to this AgreementShares at the time the automatic shelf registration statement is filed, the Company shall furnish agrees to the underwriter, if any (or, if no underwriter, the sellers of pay such Registrable Securities), unlegended certificates representing ownership of fee at such time or times as the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities Shares are to be issued sold. If the Company files an automatic shelf registration statement covering any Registrable Shares, it shall use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in uncertificated form pursuant 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 customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar end of the third year, refile a new automatic shelf registration statement covering the Registrable Securities to release Shares, and, if at any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from time when the Company of is required to re-evaluate its WKSI status the happening of Company determines that it is not a WKSI, use its reasonable best efforts to refile on Form S-3 (or any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ixsuccessor form) and, if so directed by such form is not available, Form S-1 and keep such registration statement effective during the 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 applicable 60-day period during which such registration statement must remain effective pursuant is required to this Agreement shall be extended by kept effective; and
(s) take such other actions and deliver such other documents and instruments as may be reasonably necessary to facilitate the number registration and disposition of days during the period from the date of giving of Registrable Shares (including Common Shares in connection with a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.Synthetic Second
Appears in 2 contracts
Sources: Registration Rights Agreement (Duck Creek Technologies, Inc.), Registration Rights Agreement (Duck Creek Technologies, Inc.)
Registration Procedures. (a) If and whenever In connection with the Company is required to use commercially reasonable efforts to effect the Company’s registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2obligations hereunder, the Company shall as promptly as practicable (in each case, to the extent applicable):shall:
(i) prepare Prepare and file with the Commission such amendments, including post-effective amendments, to a registration statement Registration Statement and the Prospectus used in connection therewith as may be necessary to effect such registration, keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period; (ii) cause such registration statement the related Prospectus to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to the Securities Act; provided(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, however, that the Company may discontinue excise any registration of its securities information contained therein which are not Registrable Securities at any time prior would constitute material non-public information as to the effective date of the registration statement relating theretoInvestor); 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 and (iv) comply in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file material respects with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the applicable provisions of the Securities Act and the Exchange Act of 1934, as amended (the “Exchange Act”) with respect to the disposition of all securities Registrable Securities covered by such registration statement until a Registration Statement during the earlier of such time as all of such securities have been disposed of applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the seller or sellers thereof Investor set forth in such registration statement Registration Statement as so amended or in such Prospectus as so supplemented.
(ib) in If during the case of Effectiveness Period the Company becomes eligible to file a Demand Registration Statement on Form S-3 under the Securities Act (“Form S-3”), the Company shall promptly convert the Initial Registration Statement and any Additional Registration Statement, as applicable, to a Form S-3.
(c) Notify Investor (which notice shall, pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
clauses (iii) 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;
through (vi) hereof, be accompanied by an instruction to suspend the 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 of the Prospectus until the requisite changes have been made) as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
promptly as reasonably possible (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 (i)(A) below, not less than one (1) Business Day prior to 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” letterfiling) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement and (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 Person) confirm 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 notice 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 in writing each Selling Holder and the underwriters, if any, of the following events:
no later than one (1) Business Day following the filing of the registration statement, the prospectus day (i)(A) when a Prospectus or any prospectus Prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the registration statement andCommission 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 registration statement a Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to the registration statement a Registration Statement or the prospectus or for additional information;
Prospectus, (3iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order “stop-order” suspending the effectiveness of a Registration Statement covering any or all of the registration statement Registrable Securities or the initiation of any proceedings by any Person Proceedings for that purpose;
; (4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) 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 under the securities or blue sky laws of in any jurisdiction jurisdiction, or the initiation or threat threatening of any proceeding Proceeding for such purpose;
; (ixv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as a result or passage of which, time that makes the prospectus financial statements included in such registration statementa 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, andin 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 qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the request earliest practicable moment.
(e) Furnish to Investor, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(f) Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by Investor in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any Selling Holdernotice pursuant to Section 3(c).
(g) The Company shall cooperate with any broker-dealer through which Investor proposes to resell its Registrable Securities in effecting a filing with FINRA, as requested by Investor, and the Company shall pay the filing fee required by such filing within two (2) Business Days of request therefor.
(h) Prior to any resale of Registrable Securities by Investor, use its commercially reasonable efforts to register or qualify or cooperate with Investor in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by Investor under the securities or Blue Sky laws of such jurisdictions within the United States as Investor reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(i) Upon the occurrence of any event contemplated by Section 3(c), as promptly as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare and furnish a supplement or amendment, including a post-effective amendment, to such seller a reasonable number of copies of Registration Statement or a supplement to the related Prospectus or an amendment of such prospectus as may any document incorporated or deemed to be necessary incorporated therein by reference, and file any other required document so that, as thereafter delivered to the purchasers of delivered, neither a Registration Statement nor such Registrable Securities, such prospectus shall not include Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;. If the Company notifies Investor in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then Investor shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed ninety (90) calendar days (which need not be consecutive days) in any twelve (12) month period.
(xj) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply Comply with all applicable rules and regulations of the Commission.
(k) The Company may require Investor to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by Investor and, if required by the Commission, the natural persons thereof that have voting and make available dispositive control over the shares. During any periods that the Company is unable to Selling Holders, as promptly as practicable, an earnings statement covering meet its obligations hereunder with respect to the period registration of at least 12 months, but not more than 18 months, beginning with the first day Registrable Securities solely because Investor fails to furnish such information within three (3) Business Days of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementrequest.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Janus Resources, Inc.), Registration Rights Agreement (New Energy Technologies, Inc.)
Registration Procedures. (a) If and whenever Whenever the Stockholders have requested that any Registrable Securities be registered pursuant to this Agreement (whether pursuant to Demand Registration or Piggyback Registration), the Company is required (subject to its right to withdraw such registration as contemplated by Section 2.2(d) hereof) shall use commercially reasonable its best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided intended method of distribution thereof and, in Sections 3.1 and 3.2connection therewith, the Company shall as promptly expeditiously as practicable possible, and, in any event, within sixty (in each case, to the extent applicable):60) days of receipt of such request:
(i) prepare and file with the Commission a registration statement with respect to effect such registration, Registrable Securities on any form for which the Company then qualifies and is available for the sale of Registrable Securities to be registered thereunder in accordance with the intended method of distribution and use its reasonable best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations within one hundred twenty (120) days of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessthereof;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a continuous period of not less than one hundred eighty (180) days (or, if earlier, until all Registrable Securities included in such registration statement have been sold thereunder in accordance with the method of distribution set forth therein) and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement (including, without limitation, by incorporating in a prospectus supplement or (i) in post-effective amendment, at the case request of a Demand Registration pursuant to Section 3.1seller of Registrable Securities, the expiration terms of 60 days after the sale of such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveRegistrable Securities);
(iii) before filing with the Commission any such registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to each Selling Holder and each underwritercounsel selected by the Demanding Holders of a majority of the Registrable Securities held by the Demanding Holders, counsel for the underwriter or sales or placement agent, if any, and any other counsel for holders of Registrable Securities, if any, in connection therewith, drafts of all such documents proposed to be filed and provide such counsel with a reasonable opportunity for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness;
(iv) promptly (i) notify each seller of Registrable Securities of each of (x) the filing and effectiveness of the registration statement and prospectus and any amendment or supplements thereto, (y) the receipt of any comments from the Commission or any state securities being sold by law authorities or any other governmental authorities with respect to any such Selling Holder registration statement or prospectus or any amendments or supplements thereto, and (z) any oral or written stop order with respect to such number registration, any suspension of the registration or qualification of the sale of such Registrable Securities in any jurisdiction or any initiation or threat of any proceedings with respect to any of the foregoing and (ii) use its reasonable best efforts to obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(v) furnish to each seller of Registrable Securities, the underwriters and the sales or placement agent, if any, and counsel for each of the foregoing, a conformed copies copy of such registration statement and of each amendment and supplement thereto (in each case case, including all exhibits), 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 contained (including each preliminary prospectus) included in such registration statement (including each preliminary and prospectus supplements and any summary prospectus) all exhibits thereto 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 documents incorporated by reference therein and such other documents as such Selling Holder and seller, underwriter, if any, agent or counsel may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by each such seller;
(ivvi) if requested by the managing underwriter or underwriters of any registration or by the Demanding Holders of a majority of the Registrable Securities held by the Demanding Holders, subject to approval of counsel to the Company in its reasonable judgment, promptly incorporate in a prospectus, supplement or post-effective amendment to the registration statement such information concerning underwriters and the plan of distribution of the Registrable Securities as such managing underwriter or underwriters or such holders shall reasonably furnish to the Company in writing and request be included therein, including, without limitation, with respect to the number of Registrable Securities being sold by such holders to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus, supplement or post-effective amendment as soon as possible after being notified of the matters to be incorporated in such prospectus, supplement or post-effective amendment;
(vii) use commercially reasonable its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such jurisdictions as the holders of a majority of Registrable Securities sought to be registered reasonably request and do any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, all other acts and take any other action things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter the holders of a majority of Registrable Securities sought to be registered to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except holders and keep such registration or qualification in effect for so long as the registration statement remains effective under the Securities Act (provided that the Company shall not for any such purpose be required to (x) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause paragraph, (ivy) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction where it would not otherwise be subject to taxation but for this paragraph or to file a general (z) consent to the general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject to general service of process but for this paragraph);
(vviii) use commercially reasonable efforts notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon the discovery that, or of the happening of any event as 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 promptly prepare and furnish to each such seller a supplement or amendment to the prospectus contained in such registration statement (and prepare and file and cause to become effective a post-effective amendment to such registration statement) so that such registration statement shall not, and such prospectus as thereafter delivered to the purchasers of such Registrable Securities shall not, contain an untrue statement of a material fact or omit to state any material fact required to be listed on each securities exchange on which similar securities issued by stated therein or any fact necessary to make the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to statements therein not misleading;
(ix) cause all such Registrable Securities to be listed on the New York Stock Exchange or the Exchange, Nasdaq Stock Market;
Market and/or any other national securities exchange and included in each established over-the-counter market on which or through which similar securities of the Company are listed or traded and, if not so listed or traded, to be listed on the NASD automated quotation system (vi“Nasdaq”) and, if listed on Nasdaq, use commercially its reasonable efforts to cause secure designation of all such Registrable Securities covered by such registration statement as a”national market system security” within the meaning of Regulation NMS under the Exchange Act, or, failing that, to 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 secure Nasdaq authorization for such Registrable Securities;
(viix) 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 sellerseller of Registrable Securities, any underwriter participating in any disposition pursuant to any such 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 responsibilityCompany, and cause the Company’s officers, directors directors, employees, attorneys and employees independent accountants to supply all information reasonably requested by any such Inspector sellers, underwriters, attorneys, accountants or agents in connection with such registration statement; provided. Information which the Company determines, howeverin good faith, that, to be confidential shall not be disclosed by such persons unless (x) the disclosure of such Records information is necessary to avoid or correct a misstatement or omission in the such registration statement or as otherwise required to be disclosed pursuant to the Securities Act and the rules promulgated thereunder, or (y) the release of such Records information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each seller of Registrable Securities agrees, on its own behalf and on behalf of all its underwriters, accountants, attorneys and agents, that the Company information obtained by it as a result of such inspections shall be deemed confidential and shall not be required to provide used by it as the basis for any information under this subparagraph (viii) if (i) market transactions in the securities of the Company believes, after consultation with counsel for unless and until such is made generally available to 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 public. Each seller of Registrable Securities requesting such information further agrees, on its own behalf and causes each on behalf of all its Inspectorsunderwriters, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; accountants, attorneys and providedagents, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records 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 and to prevent disclosure of the Records information deemed confidential;
(viiixi) promptly notify use its best efforts to comply with all applicable laws related to such registration statement and offering and sale of securities and all applicable rules and regulations of governmental authorities in writing each Selling Holder connection therewith (including, without limitation, the Securities Act and the underwriters, if any, of the following events:
Exchange Act) and make generally available to its security holders as soon as practicable (1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained but in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
later than fifteen (x15) make every reasonable effort to obtain the withdrawal of any order suspending months after the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Company and its subsidiaries complying with Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xii) cooperate with the sellers permit any Stockholder, which Stockholder, in its sole and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law)exclusive judgment, if necessary or appropriate, representing securities sold under any registration statement, and enable such securities might be deemed to be in such denominations and registered in such names as the managing an underwriter or such sellers may request and keep available and make available to controlling person of the Company’s transfer agent prior , to participate in the effectiveness preparation of such registration statement a supply and to require the insertion therein of material furnished to the Company in writing, which in the reasonable judgment of such certificates as necessary or appropriateholder and such holder’s counsel should be included;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as in the case may beof an underwritten offering, and otherwise use its reasonable best efforts to cooperate as reasonably requested furnish to each seller of Registrable Securities and each underwriter of such offering a signed counterpart of (x) an opinion of counsel for the Company and (y) a comfort letter signed by the Selling Holders independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, covering such matters with respect to such registration statement and, in the case of the accountants’ comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 underwritten public offerings of common stock securities for the account of, or on behalf of, an issuer of common stock, such issuers. In opinion and comfort letters to be dated the date such opinions and comfort letters are customarily dated in such transactions, and covering in the case of such legal opinion, such other legal matters and, in the case of such comfort letter, such other financial matters, as are customarily covered by such legal opinions and comfort letters;
(xiv) not permit any officer, manager, underwriter, broker or any other person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with any offering registration statement covering Registrable Securities, without the prior written consent of a majority of Stockholders of Registrable Securities registered pursuant covered in any such registration statement and any underwriter; and
(xv) use reasonable best efforts to this Agreement, have officers of the Company shall furnish participate in “road shows” for any Demand Registration and analyst or investor presentations and such other selling or informational activities as are customary for transactions similar to the underwriter, if any planned disposition of securities requested by the Demanding Holders or the managing underwriter for such offerings.
(or, if no underwriter, xvi) take all such other actions as the sellers holders of such Registrable Securities), unlegended certificates representing ownership a majority of the Registrable Securities being sold (unlessor the underwriters, if any, reasonably request in order to expedite or facilitate the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (JGWPT Holdings Inc.), Registration Rights Agreement (JLL JGW Distribution, LLC)
Registration Procedures. (a) If and whenever In connection with the registration obligations of the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms and conditions of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time shall:
(a) prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of the Registration Statement, the Company will furnish to the counsel selected Holder covered by such Registration Statement (the holders of Registrable Securities which are to be included in such registration (“"Selling Holder"), Holders”) ' Counsel and the underwriters, if any, draft copies of all such documents proposed to be filedfiled 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 will not, unless required by law, file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Selling Holder (the "Objecting Party") shall object, pursuant to notice given to the Company prior to the filing of such amendment or supplement (the "Objection Notice"). The Objection Notice shall set forth the objections and the specific areas in the draft documents where such objections arise. The Company shall have five (5) Business Days after receipt of the Objection Notice to correct such deficiencies to the satisfaction of the Objecting Party, and will notify the Selling Holder of any stop order issued or threatened by the Commission in connection therewith and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(b) as promptly as practicable prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep such Registration Statement effective for the period required pursuant to Section 2; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act applicable to it with respect to the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;
(c) as promptly as practicable furnish to any Selling Holder and the underwriters, if any, without charge, such number or conformed copies of such Registration Statement and any post-effective amendment thereto and such number of copies of the Prospectus (including each preliminary Prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein, as such Selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities being sold by such Selling Holder (it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto by each Selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by 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, and such review to be conducted with reasonable promptness;
(iid) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect on or prior to the disposition of all securities covered by such registration statement until date on which the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes Statement is declared effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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 sky" laws of such jurisdictions as any Selling Holder Holder, Holders' Counsel or underwriter reasonably requests and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of such Registrable Securities owned by such Selling Holder; keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective; and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities owned covered by such Selling Holder, except the applicable Registration Statement; provided that the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation or as a broker-dealer in any jurisdiction wherein where it is not then so qualified or (ii) take any action which would not but for the requirements subject it to general service of this clause (iv) be obligated to be so qualified, to subject itself process or to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdictionwhere it is not then so subject;
(ve) 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 Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Selling Holder(s) thereof Holders to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offeringas promptly as practicable notify the Holder, obtain for each Selling Holder ▇▇▇▇▇▇’s Counsel 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 if requested by any such Inspector Person) confirm such notice in connection with such registration statement; providedwriting, 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 when a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus Prospectus or any prospectus Prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement has been filed and, with respect to the registration statement a Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to the registration statement a Registration Statement or the prospectus related Prospectus or for additional information;
information to be included in any Registration Statement or Prospectus or otherwise, (3iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or the registration statement 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 by any Person for that purpose;
purpose and (4v) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as which makes any statement made in a result Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated by reference therein untrue or which requires the making of which, the prospectus included any changes in such registration statementRegistration Statement, as then in effect, includes an Prospectus or documents so that they will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, ; and, at the request of any Selling Holderas promptly as practicable thereafter, promptly prepare and file with the Commission and furnish a supplement or amendment to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary Prospectus so that, as thereafter delivered deliverable to the purchasers of such Registrable Securities, such prospectus shall Prospectus will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(xg) make every generally available to the Holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement;
(h) use its reasonable effort efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement, and, if one is issued, to obtain the withdrawal of any order suspending the effectiveness of such registration statementa Registration Statement at the earliest possible moment;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning practicable after filing with the first day Commission of the Company’s first full quarter after the effective date any document which is incorporated by reference into a Registration Statement, deliver a copy of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderdocument to Holders' Counsel;
(xiij) cooperate with the sellers 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 unless required under applicable law), if necessary or appropriate, and shall be in a form eligible for deposit with the Depository Trust Company) representing securities sold under any registration statementsuch 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 sellers Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement Registration Statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAcertificates; and
(xvi) 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that 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 3.6(a)(ix)3, such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Holder’s 's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by subsection (f) of this Section 3.6(a)(ix2 or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such Selling Holder will, or will request the managing underwriter or underwriters, if any, to, deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, copies then in such Selling Holder’s possession 's possession, of the prospectus Prospectus covering such Registrable Securities current at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event that the Company shall give any such notice, any applicable 60-day period during the time periods for which such registration statement must remain a Registration Statement is required to be kept effective pursuant to this Agreement Section 2 hereof shall be extended by the number of days during the period from and including the date of the giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to and including the date when all such each Selling Holders Holder shall receive such a have received (i) the copies of the supplemented or amended prospectus and such prospectus shall have been filed with Prospectus contemplated by Section 2(f) or (ii) the CommissionAdvice.
Appears in 2 contracts
Sources: Grant of Immediate Registration Rights (Signalife, Inc.), Grant of Immediate Registration Rights (Signalife, Inc.)
Registration Procedures. Whenever Registrable Securities are to be registered pursuant to this Agreement, the Company will effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof. Pursuant thereto, the Company will, as expeditiously as possible and in any event in accordance with the following procedures:
(a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under in accordance with the Securities Act as provided in Sections 3.1 and 3.2all applicable rules and regulations promulgated thereunder, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC within (x) with respect to Long-Form Registrations, forty-five (45) days of such request for registration by an eligible holder of Registrable Securities and (y) with respect to Short-Form Registrations, thirty (30) days of such request for registration by an eligible holder of Registrable Securities, a registration statement statement, and promptly thereafter all amendments and supplements thereto and related prospectuses, with respect to effect such registrationRegistrable Securities; provided, cause such that, no later than the date that is six (6) months following the Closing date, the Company shall file (x) if the Company is a WKSI, an Automatic Shelf Registration Statement or (y) if the Company is not a WKSI, a shelf registration statement to become effective at on Form S-3, in each case registering the earliest possible date permitted under the rules Equityholders’ Registrable Securities and regulations of the Commission, and thereafter (ii) use its commercially reasonable efforts to cause such registration statement to remain become effective pursuant to the terms of this Agreementas soon as reasonably practicable thereafter; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such a registration statement or prospectus pursuant to this Agreement or any amendments or supplements thereto or any Free Writing Prospectuses related thereto, the Company will furnish to counsel of the counsel selected by the holders of Registrable Securities which are to be included Equityholders in such registration (“Selling Holders”) offering copies of all such documents proposed to be filed, filed which documents will shall be subject to the review of such counsel, and the Company shall give the Equityholders and their counsel a reasonable opportunity to comment on such review documents and keep such Equityholders reasonably informed as to be conducted the registration process (and the Equityholders of the Registrable Securities covered by such 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 Company will use its commercially reasonable efforts comply with reasonable promptnesssuch request);
(iib) promptly notify the Equityholders of the effectiveness of each registration statement filed hereunder and prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for the lesser of (i) one hundred eighty (180) days and to (ii) such shorter period which will terminate when all Registrable Securities covered by the registration statement have been sold, 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 until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, that with respect to any shelf registration statement or (i) in covering Registrable Securities, if the case Company is not eligible to use an Automatic Shelf Registration Statement at the time of a Demand Registration pursuant to Section 3.1, filing then the expiration of 60 days after Company shall keep such registration statement becomes effective, or continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be useable by the Equityholders (iisubject 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 case of a Piggyback Registration pursuant to Section 3.2, Company and the expiration of 60 days after such registration statement becomes effectiveDesignated Investors;
(iiic) if requested by the managing underwriters (if any) or the holders of a majority of the then outstanding Registrable Securities included in such registration statement, promptly include in a prospectus supplement or post-effective amendment such information as the managing underwriters (if any) or such holders may reasonably request in order to permit the intended method of distribution of such securities and to make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, that the Company shall not be required to take any actions under this Section 5(c) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(d) furnish without charge to 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), Equityholders such number of copies of such registration statement, each amendment and supplement thereto, the prospectus contained 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 any Issuer each Free Writing Prospectus (or similar prospectus available under comparable foreign securities laws) and such other documents as such Selling Holder and underwriter, if any, the Equityholders may reasonably request (in each case including all exhibits thereto and documents incorporated by reference therein) in order to facilitate the public sale or other disposition of the Registrable Securities owned by the Equityholders, and the Company hereby consents to the use of such seller;
(iv) use commercially reasonable efforts to register prospectus and each amendment or qualify such supplement thereto by each of the selling holders of Registrable Securities and the underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder prospectus 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 amendment 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 jurisdictionsupplement thereto;
(ve) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by notify the Company are then listed andEquityholders, if no such securities are so listed(i) promptly after it receives notice thereof, use commercially reasonable efforts to cause such Registrable Securities to be listed on of the New York Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by date and time when 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 and 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment thereto has become effective or a prospectus or supplement to the any prospectus relating to a registration statement and, with respect to the has been filed and when any registration statement or qualification has become effective under a state securities or blue sky law or any post-effective amendment theretoexemption thereunder has been obtained, when the same has become effective;
(2ii) promptly after receipt thereof, of any request by the Commission SEC or any state securities authority for amendments the amendment or supplements to the supplementing of such registration statement or the prospectus or for additional information;
, (3iii) promptly after it receives notice thereof, of the issuance by the Commission SEC or any state securities regulator of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose;
, (4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the promptly after receipt by the Company thereof of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat of any proceeding for such purpose;
, and (ixv) notify each Selling Holder, at promptly during any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act in the happening event of the occurrence of any event as a the result of which, which is that it has actual knowledge that the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, at the request of Equityholders holding a majority of the Registrable Securities remaining unsold under such registration statement during the time that a prospectus is required to be delivered to purchasers of Registrable Securities, the Company will promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (and the period of effectiveness of such registration statement provided for in Section 5(b) shall be extended by the number of days from and including the date such notice is given to the date such amended or supplemented prospectus has been delivered under this Section 5(e));
(f) prepare and file promptly with the SEC, and notify the Equityholders prior to the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein 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 Selling Holder, promptly prepare and furnish such holder or underwriter such amendments or supplements to such seller a reasonable number of copies of a supplement to or an amendment of such registration statement and prospectus as may be necessary so thatin 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, as thereafter delivered is filed in accordance with the Securities Act to the purchasers of such Registrable Securitiesextent required thereby, such prospectus shall is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(xh) make every reasonable effort cause all such Registrable Securities to obtain be listed on a national or international securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the withdrawal of any order suspending Company are then listed or traded;
(i) provide a transfer agent and registrar for all such Registrable Securities and provide a CUSIP number for all such Registrable Securities, in each case, not later than the effectiveness effective date of such registration statement;
(xij) otherwise 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 comply with all applicable rules prevent the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction, and regulations in the event of the Commissionissuance of any such stop order or other such order the Company shall advise the Equityholders of such stop order or other such order promptly after it shall receive notice or obtain knowledge thereof and shall use its commercially reasonable efforts to promptly obtain the withdrawal of such order;
(l) use its commercially reasonable efforts to obtain a “cold comfort” letter from the Company’s independent public accountants in customary form, addressed to each of the underwriters, as applicable, and make available to Selling Holders, covering such matters of the type customarily covered by “cold comfort” letters as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day managing underwriters reasonably request;
(m) provide a legal opinion of the Company’s first full quarter after outside counsel addressed to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, which earnings statement shall satisfy each amendment and supplement thereto, the provisions of Section 11(aprospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form, and reasonably acceptable to the managing underwriters, and covering such matters of the Securities Act and Rule 158 thereundertype customarily covered by legal opinions of such nature;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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;
(xvn) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvio) 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder register or underwriter and the distribution of qualify such Registrable Securities as the Company may from time to time reasonably request to complete under such other securities or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in the 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 “blue sky” laws of such Registrable Securities), unlegended certificates representing ownership jurisdictions as any seller or underwriter reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities being sold owned by such seller (unlessprovided, that the Company will not be required to (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 to assist the underwriters with respect to, and accompany the underwriters on the so-called “road show”, in connection with the Company’s sole discretionmarketing efforts for, such Registrable Securities are to be issued in uncertificated form pursuant to and the customary arrangements for issuing shares in such form), in such denominations as requested distribution and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition sale of Registrable Securities pursuant to any Demand Registration at times that may be mutually and reasonably agreed upon; provided, that the applicable registration statement and prospectus relating thereto until such Selling Holder’s receipt personnel of the copies Company shall not be required to participate in “road shows” (including presentations and any other marketing or selling events) in excess of five (5) Business Days per Demand Registration;
(q) at any time the supplemented or amended prospectus contemplated by Section 3.6(a)(ixCompany is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) and(a “WKSI”), use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) so long as the Equityholders hold Registrable Securities;
(r) if so directed by the Company, deliver to the Companyan Automatic Shelf Registration Statement covering Registrable Securities has been outstanding for at least three years, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession end of the prospectus current third year, file a new Automatic Shelf Registration Statement covering all of the Registrable Securities (and keep such new Automatic Shelf Registration Effective in accordance with the terms hereof);
(s) if at the any time of receipt of such notice relating to such Registrable Securities. In the event when the Company shall give such noticeis 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, any applicable 60-day period during which file a shelf registration statement on Form S-3 and keep such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from as required in the date proviso to Section 5(b); and
(t) take such other actions and deliver such other documents and instruments as may be reasonably necessary to facilitate the registration and disposition of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionRegistrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (DigitalBridge Group, Inc.), Purchase and Sale Agreement (DigitalBridge Group, Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Sections 2, 3 and 3A hereof, the Company will use its reasonable best efforts to effect such registration to permit the sale of the Registrable Securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) If and whenever the Company is required with respect to use commercially reasonable efforts registrations made pursuant to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 2 only, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC a registration statement Registration Statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use commercially its reasonable best efforts to cause such registration statement Registration Statement to remain become effective pursuant to as soon as practicable, and, upon the terms request of this Agreement; provided, however, that the Company may discontinue any registration Holder of its securities which are not Registrable Securities at any time prior to the be sold under such Registration Statement (a "Rights Holder"), keep such Registration Statement effective date of the registration statement relating thereto; providedfor up to ninety (90) days, further that provided that, before filing such registration statement any Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) Rights Holders and their counsel, copies of all such documents proposed to be filedfiled at least three (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 documents will consent shall not be subject unreasonably withheld, unless required to do so by the review of such counsel, Securities Act and such review to be conducted with reasonable promptnessthe rules and regulations thereunder;
(iib) prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement the Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein Prospectus as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act and the rules and regulations thereunder with respect to the disposition of all securities covered by such registration statement until Registration Statement;
(c) promptly notify the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or Rights Holders (i) in when the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus Prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement has been filed, and, with respect to the registration statement Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2ii) of any request by the Commission SEC for amendments or supplements to the registration statement Registration Statement or the prospectus Prospectus or for additional information;
, (3iii) of the issuance by the Commission 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;
, (4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
purpose and (ixv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of whichwhich makes any statement made in the Registration Statement, the prospectus included Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, andin light of the circumstances under which they were made, at the request of any 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 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;
(xd) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statementthe Registration Statement at the earliest possible time;
(xie) otherwise use commercially reasonable efforts to comply with 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 applicable rules and regulations required filings of such Prospectus supplement or such post-effective amendment promptly after the Company has received notification of the Commissionmatters to be incorporated in such Prospectus supplement or such post-effective amendment; provided, and make available however, that the Company shall not be required to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day take any of the actions of this Section 6(e) which it determines are not, on the advice of counsel for the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderrequired under applicable law;
(xiif) furnish to each Rights Holder, without charge, at least one copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to the Rights Holders, without charge, such reasonable number of conformed copies of the Registration Statement (and any post-effective amendment thereto) and such number of copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto (and any documents incorporated by reference therein) as the Rights Holders may reasonably request, all in full conformity with the Securities Act; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Rights Holders in connection with the offer and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any offering of Registrable Securities covered by a Registration Statement, register or qualify or cooperate with the Rights Holders in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any Rights Holder reasonably requests, and use its reasonable best efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, during the period such Registration Statement is required to be kept effective pursuant to the terms of this Agreement; and do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions reasonably requested by such Rights Holder, provided that under no circumstances shall the Company be required in connection therewith or as a condition thereof to qualify to do business, to become subject to taxation or to file a general consent to service of process in any such states or jurisdictions;
(i) cooperate with the sellers Rights Holders and the managing underwriter or underwriters to facilitate the timely preparation and delivery of certificates (which shall not bear representing Registrable Securities to be sold, free of any and all restrictive legends unless required under applicable law)legends, if necessary or appropriate, representing securities sold under any registration statement, and enable such securities certificates to be in such denominations and registered in such names as the managing underwriter or such sellers underwriters, if any, or the Rights 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 as necessary or appropriaterequest;
(xiiij) have appropriate officers upon the occurrence of the Company any event contemplated by Section 6(c)(v) above, prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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” 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;
(xvk) cooperate make generally available to 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 period (or ninety (90) days, if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or, if not sold to underwriters in such an offering, (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12) month period;
(l) provide and assist in any filings required cause to be made with maintained a transfer agent and registrar for all Registrable Securities covered by each Registration Statement from and after a date not later than the Financial Industry Regulatory Authorityeffective date of such Registration Statement;
(m) use its reasonable best efforts to cause all Registrable Securities covered by each Registration Statement to be listed, Inc. 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;
(“FINRA”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 performance disposition of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAsuch Registrable Securities; and
(xvio) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations furnish, at the request of the Commission and all reporting requirements under Rights Holders, on the rules and regulations 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 Exchange Act. The counsel representing the Company may require each Selling Holder for the purpose of such registration, in form and each underwritersubstance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to furnish the Company Rights Holders, (ii) a letter dated such date, from the independent certified public accountants of the Company, in writing 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 regarding each Selling Holder or underwriter and reasonably requested by such independent certified public accountants to comply with the distribution rules governing delivery of such Registrable Securities as letters, and (iii) cause 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 the 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 to contain indemnification provisions and procedures no less favorable than those set forth in Section 8 hereof (or underwriters containing representations, warranties, indemnities such other provisions and agreements customarily included (but not inconsistent with procedures acceptable to the covenants and agreements of the Company contained hereinRights Holders) 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 all parties to be indemnified 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) Section. Each Selling Rights Holder agrees that that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix)6(c)(v) hereof, such Selling Rights Holder shall will forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant under the Prospectus related to the applicable registration statement and prospectus relating thereto Registration Statement until such Selling Rights Holder’s 's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by Section 3.6(a)(ix6(j) andhereof, if so directed or until it is advised in writing by the Company, deliver Company that the use of the Prospectus may be resumed. It shall be a condition precedent to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession obligations of the prospectus current at the time of receipt of such notice relating Company to such Registrable Securities. In the event the Company shall give such notice, take any applicable 60-day period during which such registration statement must remain effective action pursuant to this Agreement Section 6 with respect to the Registrable Securities of a Rights Holder that such Rights Holder shall furnish to the Company such information regarding itself and the Registrable Securities held by it as shall be extended required by the number of days during Securities Act to effect the period from the date of giving of a notice regarding the happening of an event registration of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus Rights Holder's Registrable Securities and such prospectus shall have been filed with the Commissionas typically provided by similarly situated selling stockholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Goldman Sachs Group Inc), Registration Rights Agreement (Orion Power Holdings Inc)
Registration Procedures. (a) If and whenever the Company is required under an obligation pursuant to the provisions of this Agreement to use commercially reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Securities, the Company shall shall, as promptly expeditiously as practicable (in each case, to the extent applicable):practicable:
(ia) prepare and file with the Commission respect to a registration under Section 2.2 or 2.3, use its best efforts to cause a registration statement that registers such Registrable Securities to effect become and remain effective for a period of 90 days or until all of such registrationRegistrable Securities have been disposed of (if earlier);
(b) furnish, cause such at least five business days before filing a registration statement that registers such Registrable Securities, a prospectus relating thereto or any amendments or supplements relating to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such a registration statement or prospectus, to each Holder, to any amendments thereto, counsel to any Holder selling Registrable Securities (the Company will furnish "SELLING HOLDER") and to the one counsel selected by the holders of a majority of such Registrable Securities which are to be included in such registration (“Selling Holders”) the "SELLING HOLDERS' COUNSEL"), copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by such Holders (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be conducted with filed so long as such successive drafts are supplied to such counsel in advance of the proposed filing by a period of time that is customary and reasonable promptnessunder the circumstances);
(iic) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for 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 such Registrable Securities have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement until Registrable Securities;
(d) notify in writing any counsel to any Selling Holder and the earlier Selling Holders' Counsel promptly (i) of such time as all of such securities have been disposed of in accordance with the intended methods of disposition receipt by the seller or sellers thereof set forth in Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (iii) in of the case receipt by the Company of a Demand Registration pursuant any notification with respect to Section 3.1, the expiration issuance by the Commission of 60 days after any stop order suspending the effectiveness of such registration statement becomes effective, or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (iiiii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the case initiation or threatening of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after any proceeding for such registration statement becomes effectivepurposes;
(iiie) use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller of Registrable Securities reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do but for this paragraph (e);
(f) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies seller of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), Registrable Securities such number of copies of the a summary prospectus contained in such registration statement (or other prospectus, including each a 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 such Registrable Securities owned by such sellerSecurities;
(ivg) 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 its 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 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 by virtue of the business and operations of the Company to enable the Selling Holder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viih) in connection with an Underwritten Offering, obtain for notify on a timely basis 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto to such Registrable Securities is required to be delivered under the Securities ActAct within the appropriate period mentioned in paragraph (a) of this Section, upon discovery that, or upon of the happening of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances then existing and, at the request of any Selling Holdersuch 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 offerees of such Registrable Securitiesshares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(xi) make every reasonable effort available for inspection by any counsel to obtain any Selling Holder and the withdrawal Selling Holders' Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such underwriter (collectively, the "INSPECTORS"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the "RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information (together with the Records, the "INFORMATION") reasonably requested by any order suspending the effectiveness of such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (i) the disclosure of such Information is necessary to avoid or correct a misstatement or omission in the registration statement, (ii) the release of such Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) such Information has been made generally available to the public. The seller of Registrable Securities agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Information deemed confidential;
(xij) in connection with any underwritten offering, use its best efforts to obtain from its independent certified public accountants "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(k) in connection with any underwritten offering, use its best efforts to obtain from its counsel an opinion or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Securities;
(m) issue to any underwriter to which any seller of Registrable Securities may sell shares in such offering certificates evidencing such Registrable Securities;
(n) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Subject to the provisions of this agreement, each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.
(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 commercially reasonable its best efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvir) otherwise use commercially reasonable its best efforts to comply with take all applicable rules and regulations of other steps necessary to effect the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution registration of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementcontemplated hereby.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Note Purchase Agreement (Serviceware Technologies Inc/ Pa), Registration Rights Agreement (Serviceware Technologies Inc/ Pa)
Registration Procedures. (a) If and whenever Whenever ▇▇▇▇▇ requests that any of his Registrable Securities be registered pursuant to this Agreement, the Company is required to will use commercially reasonable its best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Sections 3.1 intended method of disposition thereof and 3.2, pursuant thereto the Company shall will as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably practicable:
(ia) prepare and (within sixty (60) days after the end of the period within which requests for inclusion in such registration may be given to the Company) file with the Securities and Exchange Commission a registration statement with respect to effect such registration, Registrable Securities and thereafter use its best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further (provided that before filing such a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities ▇▇▇▇▇ for any registration in which are to be included in such registration (“Selling Holders”) ▇▇▇▇▇ participates copies of all such documents proposed to be filed, which documents will be subject to the review of by such counsel, and such review to be conducted with reasonable promptness);
(iib) prepare and file with the Securities and Exchange Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary (i) to keep such registration statement effective (A) for at least ninety (90) days (subject to extension pursuant to Section 3.3(b)) or until ▇▇▇▇▇ has completed the distribution described in the registration statement relating to such distribution, whichever occurs first or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer, or (B) in the case of a Shelf Registration, until the earlier of (I) the date on which all Registrable Securities have been sold under the Shelf Registration or otherwise no longer qualify as Registrable Securities, (II) when all such Registrable Securities can be sold in any ninety (90)-day period under Securities Act Rule 144, and (III) the latest date allowed by applicable law, and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers ▇▇▇▇▇ thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) 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 such registration statement, each amendment and supplement thereto, the prospectus contained 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 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▇▇▇▇▇;
(ivd) use commercially reasonable its 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 ▇▇▇▇▇ reasonably requests and do any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, all other acts and take any other action things 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 ▇▇▇▇▇ (provided that the Company shall will not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause subsection, (ivii) be obligated to be so qualified, to subject itself to taxation in respect of doing business in any such jurisdiction or to file a general (iii) consent to general 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;
(viiie) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder▇▇▇▇▇, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the request of any Selling Holder▇▇▇▇▇, promptly the Company will prepare and furnish to such seller ▇▇▇▇▇ a reasonable number of copies of a supplement or amendment to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the prospective purchasers of such Registrable Securities, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(xf) make every reasonable effort cause all such Registrable Securities to obtain be listed on each securities exchange on which similar securities issued by the withdrawal of any order suspending Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effectiveness effective date of such registration statement;
(xih) enter into such customary agreements (including underwriting agreements in customary form) and perform the Company’s obligations thereunder and take all such other actions as ▇▇▇▇▇ or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (which might include effecting a stock split or a combination of shares);
(i) make available for inspection by ▇▇▇▇▇, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by ▇▇▇▇▇ or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by ▇▇▇▇▇, underwriter, attorney, accountant or agent in connection with such registration statement, and to cooperate and participate as reasonably requested by ▇▇▇▇▇ in road show presentations, in the preparation of the registration statement, each amendment and supplement thereto, the prospectus included therein, and other activities as ▇▇▇▇▇ may reasonably request in order to facilitate the disposition of the Registrable Securities owned by ▇▇▇▇▇;
(j) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, but not later than eighteen (18) months after the effective date of the registration statement, an earnings statement covering the period of at least 12 months, but not more than 18 months, twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of such the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiik) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such registration statement for sale in any jurisdiction, the Company will use its reasonable best efforts promptly to obtain the withdrawal of such order;
(l) obtain one or more comfort letters, 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) addressed to ▇▇▇▇▇, signed by the Company’s independent public accountants in the then-current customary form and covering such matters of the type customarily covered from time to time by comfort letters as ▇▇▇▇▇ may reasonably request;
(m) provide a legal opinion of the Company’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement and addressed to the underwriters), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in the then-current customary form and covering such matters of the type customarily covered from time to time by legal opinions of such nature (in a form reasonably acceptable to ▇▇▇▇▇);
(n) cooperate with the sellers ▇▇▇▇▇ and the managing underwriter underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities to be sold under any the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter underwriter(s), if any, or such sellers ▇▇▇▇▇ may request request;
(o) notify counsel for ▇▇▇▇▇ and keep available the managing underwriter(s), immediately, and make available confirm the notice in writing (i) when the registration statement, or any post-effective amendment to the Company’s transfer agent prior registration statement, shall have become effective, or any supplement to the prospectus or any amendment prospectus shall have been filed, (ii) of the receipt of any comments from the Securities and Exchange Commission, (iii) of any request of the Securities and Exchange Commission to amend the registration statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the Securities and Exchange Commission of any stop order suspending the effectiveness of such the registration statement a supply 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 certificates as necessary or appropriatepurposes;
(xiiip) 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 effort to cooperate as reasonably requested by prevent the Selling Holders and issuance of any stop order suspending the underwriters in the offering, marketing or selling effectiveness of the Registrable Securitiesregistration statement or of any order preventing or suspending the use of any preliminary prospectus;
(xivq) if requested by any Selling Holders the managing underwriter(s) or any underwriter▇▇▇▇▇, promptly incorporate in the registration statement or any prospectus, pursuant to a prospectus supplement or post-effective amendment if necessary, such information as such Selling Holders may the managing underwriter(s) or ▇▇▇▇▇ reasonably request requests to have be included therein, including, without limitation, information relating with respect to the “Plan number of Distribution” Registrable Securities being sold by ▇▇▇▇▇ to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities;Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment; and
(xvr) cooperate with ▇▇▇▇▇ and assist each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, ▇▇▇▇▇ to furnish the Company in writing such information relating to the sale or registration of such securities regarding each Selling Holder or underwriter ▇▇▇▇▇ and the distribution of such Registrable Securities ▇▇▇▇▇’ securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementin writing.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (FB Financial Corp), Registration Rights Agreement (FB Financial Corp)
Registration Procedures. (aWhenever any Holder(s) If and whenever of Registrable Securities has requested that any Registrable Securities be registered pursuant to this Agreement, the Company is required to shall use commercially reasonable efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Sections 3.1 intended method of disposition thereof, and 3.2, pursuant thereto the Company shall as promptly as practicable (in each case, to the extent applicable):practicable:
(ia) prepare and file with the Securities and Exchange Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to in accordance with the effective date of the registration statement relating thereto; providedprovisions hereof, further provided that before filing such a registration statement or prospectus or any amendments or supplements thereto, the Company will shall furnish to the one counsel selected by the holders of Registrable Securities which are to be included in such registration Lead Investor (“Selling Counsel to the Holders”) copies of all such documents proposed to be filed, which documents will shall be subject to the prompt review and comment of such counsel, and such review Counsel to be conducted with reasonable promptnessthe Holders;
(iib) notify each Holder of Registrable Securities of the effectiveness of each registration statement filed pursuant hereto and prepare and file with the Securities and Exchange Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective during the Effectiveness Period and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) furnish to each Selling Holder and each underwriterseller of Registrable Securities, if anyat such seller’s request, of the securities being sold by such Selling Holder such number of conformed copies a copy of such registration statement and of statement, each amendment and supplement thereto (in each case including all exhibits)thereto, such number of copies of and the prospectus contained included in such registration statement (including each preliminary prospectus); provided, however, that the Company shall have no such obligation to furnish copies of a final prospectus and any summary prospectusif the conditions of Rule 172(c) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with Act are satisfied by 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 sellerCompany;
(ivd) use commercially reasonable efforts (i) to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such any jurisdictions as any Selling Holder and any underwriter of the securities being sold by reasonably requests, (ii) to keep such Selling Holder shall reasonably requestregistration or qualification in effect for so long as such registration statement remains in effect, and take (iii) to do any and all other action acts and things which may be reasonably necessary or advisable to enable any such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except (provided that the Company shall not for any such purpose be required to (x) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause subsection, (ivy) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general (z) consent to general 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);
(3e) promptly make available for inspection by any seller, any notify Counsel to the Holders and each 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon as soon as practicable after (A) discovery that, or upon after the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances in which they were made, and, at the request of such Holder or any Selling Holderunderwriter, the Company shall promptly prepare and furnish a supplement or amendment to such seller prospectus, furnish (or make available) a reasonable number of copies of a such supplement or amendment to or an amendment each seller of such prospectus as may be necessary Registrable Securities, Counsel to the Holders and the underwriters and file such supplement or amendment with the Securities and Exchange Commission so that, as thereafter delivered (or deemed to be delivered) to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances in which they were made, (B) the Company becomes aware of any request by the Securities and Exchange Commission or any Federal or state governmental authority for amendments or supplements to a registration statement or related prospectus covering Registrable Securities or for additional information relating thereto, (C) the Company becomes aware of the issuance or threatened issuance by the Securities and Exchange Commission of any stop order suspending or threatening to suspend the effectiveness of a registration statement covering the Registrable Securities, or (D) the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Security for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (ii) as soon as reasonably practicable after each registration statement or any amendment thereto has been filed with the Securities and Exchange Commission and after each registration statement or any post-effective amendment thereto has become effective;
(xf) for a reasonable period prior to the filing of any Registration Statement or the commencement of marketing efforts for an Underwritten Shelf Takedown, as applicable, provide any Participating Holder holding more than forty percent (40%) of all participating Registrable Securities, the Lead Investor if it is a Participating Holder, any underwriter participating in any disposition pursuant to a registration statement, Counsel to the Holders and counsel to the underwriters (each, an “Inspector” and, collectively, the “Inspectors”), a reasonable opportunity to participate (including, but not limited to, reviewing, commenting on and attending all meetings) in the preparation of such registration statement, each prospectus included therein or filed with the SEC and each amendment or supplement thereto;
(g) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable Securities, in each case, no later than the effective date of such registration;
(h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the underwriter(s) reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities;
(i) make every available for inspection and copying by the Inspectors all financial and other records, pertinent corporate documents and properties of the Company, and its subsidiaries and cause the officers, directors, employees and independent accountants of the Company and its subsidiaries to respond to such inquiries and to supply all information reasonably requested by any such Inspector in connection with such registration statement, provided that recipients of such financial and other records and pertinent corporate documents agree in writing to keep the confidentiality thereof pursuant to a written agreement reasonably acceptable to the Company (which shall contain customary exceptions thereto);
(j) use commercially reasonable effort efforts to (i) prevent the issuance of any stop order by the SEC, and in the event of such issuance, to obtain the withdrawal of any such stop order and (ii) obtain the withdrawal of any order suspending or preventing the effectiveness use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statementstatement for sale in any jurisdiction at the earliest practicable date;
(xik) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, obtain all other approvals, consents, exemptions or authorizations from such governmental agencies or authorities as may be necessary and required of the Company to enable the Participating Holders and underwriters to consummate the disposition of Registrable Securities, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of such the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiil) use commercially reasonable efforts to timely file all material required to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(m) use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange, if any, on which similar securities issued by the Company are then listed;
(n) cause appropriate officers as are reasonably requested by a managing underwriter to participate in a “road show” or similar marketing effort being conducted by such underwriter with respect to an Underwritten Offering;
(o) with respect to an Underwritten Demand Offering or an Underwritten Shelf Takedown, use commercially reasonable efforts to obtain and furnish to each Participating Holder a signed counterpart of (i) a cold comfort letter from the Company’s independent public accountants addressed to the underwriter(s) and to the Participating Holders (provided that if such accountants refuse to deliver such letter to the Participating Holders, then to the Company) and (ii) a legal opinion of counsel to the Company addressed to the underwriter(s) and to the Participating Holders, in each case, in customary form and covering such matters of the type customarily covered by such letters as the holders of a majority of the Registrable Securities being sold reasonably request;
(p) (i) prepare and file with the SEC such amendments and supplements to each Registration Statement as may be necessary to comply with the provisions of the Securities Act, including post effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable time period required hereunder and if applicable, file any Registration Statements pursuant to Rule 462(b) promulgated under the Securities Act, (ii) cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and (iii) provide additional information related to each Registration Statement as requested by, and obtain any required approval necessary from, the SEC or any Federal or state governmental authority;
(q) if requested by any Participating Holder or underwriter, promptly include in a prospectus supplement or amendment such information as the Holder or managing underwriters may reasonably request, including in order to permit the intended method of distribution of such securities, and make all required filings of such prospectus supplement or such amendment as soon as reasonably practicable after the Company has received such request;
(r) in the case of certificated Registrable Securities, cooperate with the sellers any Participating Holder and the managing underwriter underwriters to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities Registrable Securities to be sold under any registration statementafter receiving written representations from each Participating Holder that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter Participating Holders or such sellers underwriters may reasonably request and keep available and make available to the Company’s transfer agent at least three (3) Business Days prior to the effectiveness any sale of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivs) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling assist a Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event that the offering facilitating private sales of Registrable Securities is by, among other things, providing officers’ certificates and other customary closing documents; and
(t) use commercially reasonable efforts to be made by or through an underwriter, take all other actions necessary to effect 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 registration 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 theretocontemplated hereby.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (IMH Financial Corp), Registration Rights Agreement (IMH Financial Corp)
Registration Procedures. (a) If and whenever the Company Seller is required to use commercially reasonable efforts by the ------------------------ provisions of this Article VII to effect the registration of any Registrable Securities of Purchaser's securities under the Securities Act Act, Seller will, as provided in Sections 3.1 and 3.2, the Company shall expeditiously as promptly as practicable (in each case, to the extent applicable):possible:
(ia) promptly prepare and file with the Commission a registration statement with respect to effect such registration, securities and cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant for a period of time required for the disposition of such securities by the Holders thereof, but not to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to exceed three months from 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessthereof;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in a public offering or the expiration of three months, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof Holders of such securities set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) 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), Holders such number of copies of such registration statement, each amendment and supplement thereto, and the prospectus contained 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), all in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder and underwriter, if any, Holders may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerrequest;
(ivd) notify such Holders promptly after Seller shall receive notice thereof, of the time when such registration statement became effective or when any amendment or supplement to any prospectus forming a part thereof 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 forming a part thereof or for additional information;
(f) advise such Holders after Seller shall receive notice or otherwise obtain knowledge of the issuance of any order by the Commission suspending the effectiveness of such registration statement or amendment thereto or of 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 promptly if such stop order should be issued;
(g) use commercially reasonable its best efforts to register or qualify such Registrable Securities covered by such registration statement securities under such other securities laws or blue sky laws of such jurisdictions within the United States and Puerto Rico as any Selling each Holder and (or any 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 securities being sold by such Selling Holder shall reasonably requestlaws of any jurisdiction in which it is not then qualified or to file any general consent to service of process), and take any do such other action which reasonable acts and things as may be reasonably necessary or advisable required of it to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions jurisdiction 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 jurisdictionsecurities;
(vh) use commercially reasonable efforts to cause such Registrable Securities to be listed furnish on each securities exchange on which similar securities issued by the Company are then listed and, if no date that such securities are so listeddelivered to underwriters for sale pursuant to such registration or, use commercially reasonable efforts to cause if such Registrable Securities to be listed securities are not being sold through underwriters, on the New York Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by date that 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;
becomes effective, (vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1i) an opinion dated such date, of the independent counsel representing Seller 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 purposes 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 jurisdictionregistration, 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 addressed 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 in writing each Selling Holder and the 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 following events: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 case may be, shall reasonably request;
(1i) 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 filing disposition of such securities;
(j) 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 prospectus or any prospectus supplement related theretoperiod of at least 12 months beginning with the first full month after the effective date of such registration statement, any Issuer Free Writing Prospectus or post-effective amendment to which earnings statements shall satisfy the registration statement andprovisions of Section 11(a) of the Securities Act (including, with respect to at the registration statement or any post-effective amendment theretooption of Seller, when the same has become effectiveRule 158);
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixk) notify each Selling Holder, such Holders at any time when a prospectus relating thereto to such registration statement is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, the prospectus included in which such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling such Holder, promptly prepare and furnish a supplement or amendment to such seller a reasonable number of copies of a supplement to or an amendment of registration statement so that such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall registration statement will not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;
(xl) make every cause all shares of Common Stock being so registered to be listed on each securities exchange on which similar securities issued by Seller are then listed or, if similar securities are not then listed, take all reasonable effort action either to obtain list such shares on a securities exchange or to facilitate the withdrawal trading of any order suspending the effectiveness of such registration statement;securities on the Nasdaq National Market; and
(xim) otherwise use commercially reasonable efforts to comply with provide a transfer agent and registrar for all applicable rules and regulations shares of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but Common Stock being so registered not more later 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 . It shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available a condition precedent to the Company’s transfer agent prior obligation of Seller to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at take any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 action pursuant to this Agreement, Article VII in respect of the Company shall furnish securities which are to be registered at the underwriter, if request of any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership Holder of the Registrable Securities being sold (unless, in the Company’s sole discretion, that such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such Selling Holder shall forthwith discontinue furnish to Seller such Selling Holder’s information regarding the securities held by such Holder and the intended method of disposition of Registrable Securities pursuant to the applicable registration statement thereof as Seller shall reasonably request and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement as shall be extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described required in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed connection with the Commissionaction taken by Seller. Seller may reasonably rely upon any such information so furnished by a Holder.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (International Computex Inc), Common Stock Purchase Agreement (International Computex Inc)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 6.1, 6.2 and 3.2, 6.3 the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC 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 Commission, SEC and thereafter use commercially reasonable best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (ix) in the case of a Demand Registration pursuant to Section 3.16.1, the expiration of 60 sixty (60) days after such registration statement becomes effective, or (iiy) in the case of a Piggyback Registration pursuant to Section 3.26.2, the expiration of 60 sixty (60) days after such registration statement becomes effectiveeffective or (z) in the case of a Shelf Registration pursuant to Section 6.3, the Shelf Registration Effectiveness Period;
(iii) 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 sellerSelling Holder;
(iv) use commercially 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, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to service of process in any such jurisdiction;
(v) use commercially 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 NASDAQ Stock Market;
(vi) use commercially 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:
(1A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2B) 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. 72AU 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 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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 SEC confidential treatment of such information contained in any filing with the Commission 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 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) any request by the Commission SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) the issuance by the Commission SEC or any of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4D) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding Proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holders, as promptly as practicable, an earnings statement of the Company covering the period of at least 12 twelve (12) months, but not more than 18 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 Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers any Selling Holder and any underwriters and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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 as certificates, if necessary or appropriate;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 SecuritiesSelling 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.
(cb) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix6.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix6.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.event
Appears in 2 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreements (Moelis & Co)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act or an Underwritten Offering as provided in Sections 3.1 Section 4.1, Section 4.2 and 3.2Section 4.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will (A) furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents (B) provide each such Selling Holder and their counsel the opportunity to object to any information pertaining to such Selling Holder or its plan of distribution that is contained in the registration statement (it being understood that each Selling Holder and counsel to such Selling Holder will be subject conduct their review and provide any comments promptly) and (C) make any changes reasonably requested by such Selling Holder or their counsel with respect to the review of such counsel, and such review to be conducted with reasonable promptnessinformation;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements and “stickers” to such registration statement and the prospectus used in connection therewith and any Exchange Act reports Filings incorporated by reference therein 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 securities covered by such registration statement until the earlier of (x) such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (y) (i) in the case of a Demand Registration pursuant to Section 3.14.1, the expiration of 60 days [***] after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.2, the expiration of 60 days [***] after such registration statement becomes effectiveeffective or (iii) in the case of a Shelf Registration Statement pursuant to Section 4.3, the last day of the Shelf Registration Effectiveness Period;
(iii) furnish 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 exhibitsexhibits 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 sellerSelling 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 commercially reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange 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 or the Nasdaq Stock MarketExchange;
(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 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 Statement on Auditing Standards No. 72AU 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 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission or any other Governmental Authority for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission or any other Governmental Authority of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when the existence of any conflict between the information contained in any Issuer Free Writing Prospectus includes information that may conflict with and the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months[***], but not more than 18 months[***], beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Ordinary Shares or American Depositary Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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;
(xiiixv) have 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 cooperate (as reasonably requested by the Selling Holders and the underwriters underwriters) in the offering, marketing or selling of the Registrable Securities;
(xivxvi) cause appropriate officers of the Company and representatives of the Company’s independent registered public accountants to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Equity Securities of the Company;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal,” Block Trade Offering or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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. 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 Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers Selling Holder), to the extent permitted under applicable law and subject to any requirements of such Registrable Securities)the Depositary, unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.rep
Appears in 2 contracts
Sources: Shareholders’ Rights Agreement (Fortress Investment Group LLC), Shareholders’ Rights Agreement (Fortress Investment Group LLC)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 3.1, 3.2 and 3.2, 3.3 the Company shall as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably possible:
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 3.3, the expiration of one year after such registration statement becomes effective;
(iii) furnish 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, 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 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);
(3viii) 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 SEC confidential treatment of such information contained in any filing with the Commission 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(54) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any 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 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;
(xxi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) 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 reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, ) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;certificates; and
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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)sold, in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 applicable 60-60 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Investor Rights Agreement (GateHouse Media, Inc.), Investor Rights Agreement (GateHouse Media, Inc.)
Registration Procedures. (a) If If, and whenever in each case when, the Company is required to use commercially reasonable efforts to effect the a registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Section 3, the Company shall as promptly as practicable promptly:
(a) prepare and, in each case, 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 extent applicable):
(i) prepare and Company, file with the Commission a registration statement Registration Statement with respect to effect such registrationRegistrable Securities and use, cause such registration statement to become effective at in the earliest possible date permitted under event the rules and regulations of the CommissionCompany is not a WKSI, and thereafter use its commercially reasonable efforts to cause such registration statement Registration Statement to remain become effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date within ninety days 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessinitial filing;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement effective (i) in the case of a shelf Registration Statement, until the earlier of (A) the date on which all remaining Registrable Securities may be sold under Rule 144 under the Securities Act without regard to volume limitations or (B) two years after the effective date of such Registration Statement, or (ii) in all other cases for a period not in excess of 270 days (in each case, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold) and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such registration statement until the earlier of Registration Statement during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement Registration Statement; provided that before filing a Registration Statement or (i) prospectus, or any amendments or supplements thereto in accordance with Sections 3.1 or 3.2, the case of a Demand Registration Company will furnish to counsel selected pursuant to Section 3.13.3.3 hereof copies of all documents proposed to be filed, which documents will be subject to the expiration review of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivecounsel;
(iiic) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Registrable Securities such number of conformed copies of such registration statement Registration Statement and of each amendment and supplement thereto (in each case including all exhibitsexhibits filed therewith), such number of copies of the prospectus contained included in such registration statement 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, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(ivd) use commercially reasonable its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of in such jurisdictions as any Selling Holder and any underwriter each seller of the securities being sold by such Selling Holder Registrable Securities shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holderjurisdictions, 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 where (but for the requirements of this clause (ivd)) it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable efforts to cause such Registrable Securities to be listed on notify 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 seller of any 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling HolderRegistration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, Company’s becoming aware that the prospectus included in such registration statementRegistration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, and at the request of any Selling Holdersuch seller, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to an amended or an amendment of such supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xif) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holdersits security holders, as promptly soon as practicable, an earnings statement covering the period of at least 12 months, reasonably practicable (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 statementthe Registration Statement, an earning statement which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiig) (i) if such Registrable Securities are Common Stock (including Common Stock issuable upon conversion, exchange or exercise of another security), use its best efforts to list such Registrable Securities on any securities exchange or authorize for quotation on each other market on which the Common Stock is then listed or authorized for quotation if such Registrable Securities are not already so listed or authorized for quotation; and (ii) use its best efforts to provide a transfer agent and registrar for such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
(h) enter into such customary agreements (including an underwriting agreement in customary form), which shall include indemnification provisions in favor of underwriters and other Persons (in addition to the provisions of Section 3.4 hereof) covering the entirety of the Registration Statement, excluding any information supplied to the underwriters by the Holders selling Registrable Securities in such offering, and take such other actions as the Principal Participating Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(i) obtain a “comfort” letter or letters from the Company’s independent public accountants in customary form and covering matters of the type customarily covered by “comfort” letters, as the Principal Participating Holders shall reasonably request;
(j) make available for inspection by any seller of such Registrable Securities covered by such Registration Statement, by any managing underwriter or underwriters participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by any such seller or any such managing underwriter(s), all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement (subject to each party referred to in this clause (j) entering into customary confidentiality agreements in a form reasonably acceptable to the Company);
(k) notify counsel (selected pursuant to Section 3.3.3 hereof) for the Holders of Registrable Securities included in such Registration Statement and the managing underwriter or agent, immediately, and confirm the notice in writing (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the prospectus or any amendment to the prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Registration Statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(l) use its best efforts to prevent the issuance of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable;
(m) if requested by the managing underwriter or agent or any Holder of Registrable Securities covered by the Registration Statement, incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such Holder reasonably requests to be included therein, including the number of Registrable Securities being sold by such Holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent, and any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(n) cooperate with the sellers 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 (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities to be sold under any registration statementthe Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or agent, if any, or such sellers 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 as necessary or appropriaterequest;
(xiiio) have appropriate officers 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 prepare in customary form and make presentations at any “road shows” in form, substance and before analysts scope reasonably satisfactory to such Holders, underwriters or agents and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securitiestheir counsel;
(xivp) if requested by any Selling Holders cooperate with each seller of Registrable Securities and each underwriter or any underwriter, promptly incorporate agent participating in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, disposition of such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate Securities and assist their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xviq) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations make available the executive officers of the Commission and all reporting requirements under Company to participate with the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event that the offering Holders of Registrable Securities is to and any underwriters in any “road show” presentations or investor telephone conference calls that may be made reasonably requested 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 Holders 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 distribution 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 theretoSecurities.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights and Coordination Agreement, Registration Rights and Coordination Agreement (West Corp)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the any registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.22.1 or 2.2 hereof, the Company shall shall, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) prepare and file with the Commission a (promptly and, in any event on or before the date that is (i) 90 days, in the case of any registration pursuant to Section 2.1(a), after the receipt by the Company of the written request from KKR or (ii) 30 days, in the case of any registration pursuant to Section 2.1(f) after the receipt by the Company of the written request from KKR) the requisite 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 Commission, and thereafter use commercially its reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreementeffective; provided, however, that the Company may discontinue any registration of its securities which that are not Registrable Securities Shares (and, under the circumstances specified in Sections 2.2 and 2.7(b) hereof, its securities that are Registrable Shares) 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus, including any free writing prospectus as defined in Rule 405 under the Securities Act, used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Shares and any other securities being sold in an underwritten Public Offering covered by such registration statement until the earlier of such time as all of such Registrable Shares and any other securities have being sold in an underwritten Public Offering has been disposed of in accordance with the intended methods method of disposition by the seller or sellers thereof set forth in such registration statement statement; provided, however, that with respect to each free writing prospectus or other materials to be delivered to purchasers at the time of sale of the Registrable Shares, the Company shall (i) ensure that no Registrable Shares be sold “by means of” (as defined in Rule 159A(b) under the case Securities Act) such free writing prospectus or other materials without the prior written consent of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after KKR covered by such registration statement becomes effectivestatement, which free writing prospectus or other materials shall be subject to the review of counsel to KKR and (ii) in make all required filings of all free writing prospectuses or other materials with the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;SEC as are required.
(iiic) furnish to each Selling Holder KKR and each underwriter, if any, of the securities being sold by such Selling Holder such number of copies of such drafts and final conformed copies versions of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of such drafts and final versions 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 documents, as such Selling Holder KKR or any underwriter may reasonably request in writing;
(d) use its reasonable best efforts (i) to register or qualify all Registrable Shares and underwriterother securities, 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 states or other jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder United States of America as KKR shall reasonably requestrequest in writing, (ii) to keep such registration or qualification in effect for so long as such registration statement remains in effect and (iii) to take any other action which that may be reasonably necessary or reasonably advisable to enable such Selling Holder and underwriter KKR to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling HolderKKR, 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 subsection (ivd) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially its 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 obtain and, if no such securities are so listedobtained, use commercially reasonable efforts furnish to cause such Registrable Securities to be listed on the New York Stock Exchange or the Nasdaq Stock Market;KKR, and each underwriter, if any, a signed
(vii) 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 opinion and underwriter:
(1) an opinion disclosure letter of counsel for the Company, covering dated the matters effective date of such registration statement (and, if such registration involves an underwritten Public Offering, dated the date of the closing under the underwriting agreement and addressed to the underwriters), reasonably satisfactory (based on the customary form and substance of opinions and disclosure letters of issuers’ counsel customarily covered given in opinions requested such an offering) in underwritten offerings form and such other matters as may be reasonably requested by such Selling Holder and substance to the managing underwriters, and
(2ii) a “cold comfort” letter letter, dated the effective date of such registration statement (orand, in if such registration involves an underwritten Public Offering, dated the case date 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” letterclosing under the underwriting agreement and addressed to the underwriters) and signed by the independent registered public accountants who have accounting firm that certified the Company’s financial statements included or incorporated by reference in such registration statement, reasonably satisfactory (based on the customary form and substance of “cold comfort” letters of issuers’ independent registered public accounting firm customarily given in such an offering) in form and substance to the managing underwriters, in each case of clauses (i) and (ii) above, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, if necessary, any other in the case of the 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 Companyaccounting firm’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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement andcomfort letter, with respect to events subsequent to the registration statement or any post-effective amendment theretodate of such financial statements, when as are customarily covered in opinions of issuer’s counsel and in the same has become effectiveindependent registered public accounting firm’s comfort letters delivered to underwriters in underwritten Public Offerings of securities;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixf) notify each Selling Holder, KKR at any time when a prospectus relating thereto to the Registrable Shares and any other securities covered by such registration statement, if any, 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 misleadingmisleading in the light of the circumstances under which they were made, and, at the written request of any Selling HolderKKR, promptly prepare and furnish to such seller it 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 Securitiessecurities, such prospectus prospectus, as supplemented or amended, 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 misleadingmisleading in the light of the circumstances under which they were made;
(xg) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such a registration statementstatement relating to the Registrable Shares at the earliest possible moment;
(xih) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the CommissionCommission and any other Governmental Authority having jurisdiction over the offering, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings earning statement covering the period of at least 12 twelve months, but not more than 18 eighteen months, beginning with the first day of the Company’s first full quarter calendar month after the effective date of such registration statement, which earnings earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder, and furnish to KKR and to the managing underwriter, if any, at least ten days prior to the filing thereof a copy of any amendment or supplement to such registration statement or prospectus;
(xiii) use its reasonable best efforts to cause all Registrable Shares and any other securities being sold in an underwritten Public Offering covered by a registration statement (i) to be listed on the Designated Exchange, if the listing of such Registrable Shares is then permitted under the rules of such exchange, or another national securities exchange if the listing is not then permitted or (ii) if the Company is not permitted pursuant to clause (i) above to list Registrable Shares on a national securities exchange, use its reasonable best efforts to secure designation of all Registrable Shares and any other securities being sold in an underwritten Public Offering as a “national market system security” within the meaning of Rule 600(b)(46) of Regulation NMS;
(j) provide a transfer agent and registrar for the Registrable Shares covered by a registration statement no later than the effective date thereof;
(k) enter into such agreements (including an underwriting agreement in customary form) and take such other actions as KKR shall reasonably request in order to expedite or facilitate the disposition of such Registrable Shares, including customary indemnification and contribution to the effect and to the extent provided in Section 2.8 hereof;
(l) in connection with an underwritten Public Offering, if reasonably requested by the managing underwriter(s) or KKR, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter(s) and KKR agree should be included therein relating to the plan of distribution with respect to such Registrable Shares, including without limitation, information with respect to the number of Registrable Shares being sold to such underwriters, the purchase price being paid therefore by such underwriters and with respect to any other terms of the underwritten Public Offering of the Registrable Shares to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(m) if requested by KKR, cooperate with the sellers KKR and the managing underwriter underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (which shall representing Registrable Shares to be sold and not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, legends; and enable such securities Registrable Shares to be in such denominations share amounts and registered in such names as the managing underwriter underwriter(s) or such sellers KKR may request and keep available and make available on or prior to any sale of Registrable Shares to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriateunderwriters;
(xiiin) have appropriate if the registration shall be for an underwritten Public Offering, cause senior officers of the Company prepare to participate in reasonable and make presentations at any “road shows” and before analysts and rating agencies, as customary roadshows necessary to effect the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling disposition of the Registrable Securities;
(xiv) if requested Shares as provided 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, managing underwriters of such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAunderwritten Public Offering; and
(xvio) otherwise use commercially reasonable efforts take such actions as are necessary to comply with all applicable rules and regulations permit any Ordinary Shares covered by any registration effected hereunder to be sold in the form of ADSs. As a condition to the obligations of the Commission and all reporting requirements under Company to complete any registration pursuant to this Agreement with respect to the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriterRegistrable Shares, if any, KKR must furnish to furnish the Company in writing such information (the “Shareholder Information”) regarding each Selling Holder or underwriter itself, the Registrable Shares held by it and the distribution intended methods of 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 disposition of the foregoing, in Registrable Shares held by it as is necessary to effect the 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 registration of the Company contained hereinRegistrable Shares and is requested in writing by the Company. At least fifteen (15) by an issuer days prior to the first anticipated filing date of common stock in underwriting agreements with respect to offerings of common stock a registration statement for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to registration under 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 will notify in writing KKR of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from Shareholder Information which the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 is requesting from the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionKKR.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tarena International, Inc.), Registration Rights Agreement (Han Shaoyun)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 2.2 and, as applicable, 2.3, the Company shall shall, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(i) prepare and file with the Commission a SEC the registration statement statement, or amendments thereto, to effect such registration, cause registration (including such registration statement to become effective at audited financial statements as may be required by the earliest possible date permitted under Securities Act or the rules and regulations of the Commission, promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to remain be declared effective by the SEC, as soon as practicable, but in any event no later than the Required Effectiveness Date (with respect to a registration pursuant to the terms of this AgreementSection 2.2); provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders Holders of Registrable Securities which are to be included in such registration (“Selling Holders”) registration, copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) with respect to any registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities Registrable Securities covered by such registration statement until the earlier of such time as all of such the securities have been disposed which are the subject of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or cease to be Registrable Securities (i) such period, in the case of a Demand Registration pursuant to Section 3.1each case, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback “Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveMaintenance Period”);
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold Registrable Securities covered by such Selling Holder 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 any Issuer Free Writing Prospectus and such other documents 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 sellerHolder;
(iv) use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling 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 or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities 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 subdivision (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to general service of process in any such jurisdiction;
(v) use its commercially 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 commercially reasonable efforts to cause such 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 Selling Holder(s) U.S. Holder thereof to consummate the disposition of such Registrable Securities;
(viivi) in connection with an Underwritten Offeringfurnish to each Holder a signed counterpart, obtain for each Selling Holder addressed to such Holder, and underwriter:
(1) the underwriters, if any, of an opinion of counsel for the Company, covering dated the matters customarily covered 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 opinions requested 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 underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwritersorder to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(2vii) a “comfort” letter (or, notify the Holder and its counsel promptly and confirm such advice 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 writing promptly after 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);has knowledge thereof:
(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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of when the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement has been filed, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) of any request by the Commission SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixviii) notify each Selling HolderHolder 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, 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 facts required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of any Selling Holder, such Holder promptly prepare and furnish to such seller 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 Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(xix) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of such the registration statementstatement at the earliest possible moment;
(xix) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement covering the period of at least 12 twelve months, but not more than 18 eighteen months, beginning with the first day of the Company’s first full quarter 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 and Rule 158 thereunder;
(xi) enter into such agreements and take such other actions as the Holders shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to expedite or facilitate the disposition of such Registrable Securities; and
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its commercially reasonable best efforts to cooperate as reasonably requested list or otherwise qualify for trading all Registrable Securities covered by the Selling Holders such registration statement on any securities exchange, trading market, quotation system and the underwriters in the offering, marketing or selling any other trading venue on which any of the Registrable Securities;
(xiv) 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” Company’s securities of the same class as the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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 ActSecurities are then listed or qualified for trading or quotation. The Company may require each Selling Holder and each underwriter, if any, of Registrable Securities as to which any registration is being effected to furnish the Company in writing such information regarding each Selling such Holder or underwriter and the distribution of such Registrable Securities securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementin writing.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Intersearch Group Inc), Investment Agreement (Intersearch Group Inc)
Registration Procedures. (a) If and whenever Whenever the parties hereto have requested that any Registrable Securities be registered in a Piggyback Registration pursuant to Section 5.1 or a Demand Registration has been requested pursuant to Section 5.2, the Company is required to will use commercially its reasonable efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Sections 3.1 intended method of disposition thereof, and 3.2, pursuant thereto the Company shall will as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) prepare and file with the Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, Registrable Securities and thereafter use commercially its reasonable efforts to cause such registration statement to remain become effective pursuant to the terms of this Agreement; provided(provided that, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such 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 which are to be included in covered by such registration (“Selling Holders”) statement copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness);
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period of either (i) not less than six months (subject to extension pursuant to Section 5.7(b)) or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer 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 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 until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) furnish to each Selling Holder and each underwriter, if any, seller 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), Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(ivd) use commercially its 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 seller reasonably requests and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except seller (provided that the Company shall will not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause subparagraph, (ivii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general (iii) consent to general service of process in any such jurisdiction);
(ve) use commercially reasonable efforts to cause such Registrable Securities to be listed on notify 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 seller 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the request of any Selling Holdersuch seller, promptly the Company will prepare and furnish to such seller a reasonable number of copies of a supplement or amendment 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 will not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(xf) make every reasonable effort cause all such Registrable Securities to obtain be listed on each securities exchange on which similar securities issued by the withdrawal of any order suspending Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effectiveness effective date of such registration statement;
(xih) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(j) otherwise use commercially its reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, twelve months beginning with the first day of the Company’s 's first full calendar quarter after the effective date of such the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiik) cooperate with in the sellers and event of the managing underwriter to facilitate issuance of any stop order suspending the timely preparation and delivery effectiveness of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any a registration statement, and enable such or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities to be included in such denominations and registered registration statement for sale in any jurisdiction, the Company will use its reasonable efforts promptly to obtain the withdrawal of such names as order;
(l) obtain a cold comfort letter, dated the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness effective date of such registration statement a supply of (and, if such certificates as necessary or appropriate;
(xiii) have appropriate officers registration includes an underwritten public offering, dated the date of the Company prepare closing under the underwriting agreement), signed by the Company's independent public accountants in customary form and make presentations at any “road shows” and before analysts and rating agencies, covering such matters of the type customarily covered by cold comfort letters as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling holders of a majority of the Registrable Securities;
(xiv) 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 Securities being sold reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” (provided that such Registrable Securities constitute at least 10% of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation securities covered by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAsuch registration statement); and
(xvim) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations provide a legal opinion of the Commission and all reporting requirements Company's outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the rules underwriting agreement), with respect to the registration statement, each amendment and regulations supplement thereto, the prospectus included herein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the Exchange Acttype customarily covered by legal opinions of such nature. The Company may require each Selling Holder and each underwriter, if any, seller of Registrable Securities as to which any registration is being effected to furnish the Company in writing such information regarding each Selling Holder or underwriter such seller and the distribution of such Registrable Securities securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementin writing.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Shareholders Agreement (Tanner Chemicals Inc), Shareholder Agreement (Sovereign Specialty Chemicals Inc)
Registration Procedures. In the case of each registration, qualification or compliance effected by the Company pursuant to this Agreement, the Company will:
(a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act keep each Holder advised in writing as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):initiation of each registration, qualification and compliance and as to the completion thereof;
(ib) prepare and file with the Commission a registration statement and any amendments thereto with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules securities and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant to Rule 415 under the terms Securities Act at all times until such date as is the earlier of: (i) the date on which all of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior have been sold; and (ii) the date on which the Registrable Securities may be immediately sold to the effective date of the public without registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will restriction;
(c) furnish to the counsel selected by the holders of Registrable Securities which are to be included Holders participating in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject and to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, underwriters of the securities being sold by registered 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 reasonable number of copies of the registration statement, preliminary prospectus, final 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 Holders and underwriter, if any, underwriters may reasonably request in order to facilitate the public sale or other disposition offering of the Registrable Securities owned by such sellersecurities;
(ivd) use commercially its reasonable best efforts to register or and qualify such Registrable Securities the securities covered by such registration statement under such other securities laws or blue sky 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 requested by 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 jurisdictionHolders;
(ve) use commercially reasonable efforts to 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 of such offering.
(f) cause all such Registrable Securities registered pursuant to this Agreement hereunder to be listed on a national securities exchange or trading system and each securities exchange and trading system 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;
(vig) use commercially reasonable efforts to cause such provide a transfer agent and registrar for 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 Selling Holder(s) thereof to consummate the disposition of pursuant hereunder and a CUSIP number for all such Registrable Securities;
(vii) , in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion case not later than the effective date 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, registration; and
(2h) use its reasonable best efforts to furnish, at the request of any Holder, on the date on which the Registrable Securities are sold to the underwriter, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) a “comfort” letter (ordated such date, 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 from the independent registered certified 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 in form and substance as is customarily given by independent certified public accountants to do so would cause the Company underwriters in an underwritten public offering, addressed 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sparking Events, Inc.), Registration Rights Agreement (Sparking Events, Inc.)
Registration Procedures. In the case of each registration effected by the Company pursuant to Section 1, the Company will keep each Holder advised in writing as to the initiation of each registration and as to the completion thereof. At its expense, the Company will use its best efforts to:
(a) If and whenever Keep such registration effective for a period of one hundred fifty (150) days or until the Company is required to use commercially reasonable efforts to effect Holder or Holders have completed the distribution described in the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2statement relating thereto, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementwhichever first occurs; provided, however, that (i) such one hundred fifty (150) day period shall be extended for a period of time equal to the Company may discontinue period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of its securities which are not Registrable Securities at any time prior on Form S-3 that are intended to the effective date of be offered on a continuous or delayed basis, subject to compliance with applicable Commission rules, such one hundred fifty (150) day period shall be extended for up to seventy-five (75) days, if necessary, to keep the registration statement relating thereto; provided, further that before filing effective to enable all 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnesssold;
(iib) prepare Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein with such registration statement 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by Furnish 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 numbers of copies of the prospectus contained in such registration statement (prospectuses, including each a preliminary prospectus and any summary or an amendment of or supplement to the prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of as required by the Securities Act, and any Issuer Free Writing Prospectus and such other documents documents, as such Selling a Holder and underwriter, if any, from time to time may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerrequest;
(ivd) use commercially reasonable efforts to register or qualify Cause all such Registrable Securities registered pursuant hereunder to be listed on a national securities exchange and each securities exchange on which similar securities issued by the Company are then listed;
(e) Provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(f) In connection with any underwritten offering pursuant to a registration statement filed pursuant to Section 1.2 hereof, the Company will enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of Common Stock, provided such underwriting agreement contains reasonable and customary provisions, and provided further, that each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(g) Register and qualify the securities covered by such registration statement under such other securities 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 requested by the disposition in such jurisdictions of the Registrable Securities owned by such Selling HolderHolders, except provided that the Company shall not for any such purpose be required in connection therewith or as a condition thereto 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 jurisdictionstates or jurisdictions unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(vh) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued Promptly make available for inspection 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 Holders of 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 necessarystatement, 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);
(3managing underwriter(s) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any such registration statement, and any attorney, attorney or accountant or other agent or representative retained by any such seller underwriter or underwriter (collectively, selected by the “Inspectors”)selling Holders, all financial and other records, pertinent corporate documents documents, and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Company’s officers, directors directors, employees, and employees independent accountants to supply all information reasonably requested by any such Inspector seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection 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 therewith;
(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 Notify each Holder of Registrable Securities agrees that it willcovered by such registration statement, upon learning that disclosure promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such 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 confidentialregistration statement has been filed;
(viiij) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the After such registration statement andbecomes effective, with respect to the notify each Holder of Registrable Securities covered by such registration statement or any post-effective amendment thereto, when the same has become effective;
(2) of any request by the Commission for amendments that the Company amend or supplements to the supplement such registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statementprospectus; and
(5k) the receipt by the Company Notify each Holder of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for covered by such purpose;
(ix) notify each Selling Holder, registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any 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 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;
(x) make every reasonable effort to obtain misleading in the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations light of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementcircumstances then existing.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Varonis Systems Inc), Investors’ Rights Agreement (Varonis Systems Inc)
Registration Procedures. If and whenever (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 2 and 3.23 or (b) there is a Requesting Holder in connection with any other proposed registration by the Company under the Securities Act, the Company shall will as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(i) prepare and file with the Commission a the requisite registration statement to effect (including such registration, cause such registration statement to become effective at audited financial statements as may be required by the earliest possible date permitted under Securities Act or the rules and regulations of the Commission, promulgated thereunder) to effect such registration and thereafter use commercially reasonable its best efforts to cause such registration statement to remain effective pursuant become effective, provided that before filing such registration statement or any amendments thereto, the Company will furnish to the terms counsel selected by the holders of this Agreement; Registrable Securities whose Registrable Securities are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and provided, howeverfurther, 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep maintain the effectiveness of such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of (A) such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or and (iB) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 120 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant except with respect to Section 3.2, the expiration of 60 days after any such registration statement becomes effectivefiled pursuant to Rule 415 (or any successor Rule) under the Securities Act, in which case such period shall be 2 years;
(iii) furnish to each Selling Holder seller of Registrable Securities covered by such registration statement and each underwriter, if any, of the securities being sold by such Selling 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 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 documents, as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerrequest;
(iv) use commercially reasonable its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder each seller thereof and any underwriter of the securities being sold by such Selling 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 other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Holderseller, 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 subdivision (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to general service of process in any such jurisdiction;
(v) use commercially reasonable its 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 commercially reasonable efforts to cause such 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 Selling Holder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viivi) in connection with an Underwritten Offering, obtain for furnish to 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 and each Requesting Holder a signed counterpart, addressed to 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;
seller (viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Note and Warrant Purchase Agreement (General Housing Inc), Securities Purchase Agreement (General Housing Inc)
Registration Procedures. (a) If In connection with the Company’s registration obligations pursuant to Articles III, IV and whenever V, the Company is required to shall use its commercially reasonable best efforts to effect such registrations to permit the registration sale of any Registrable Securities under by a Selling Holder in accordance with the Securities Act as provided in Sections 3.1 intended method or methods of disposition thereof, and 3.2, pursuant thereto the Company shall as promptly as practicable (in each case, to the extent applicable):reasonably practicable:
(ia) prepare and file with the Commission SEC a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted Registration Statement on an appropriate form under the rules and regulations Securities Act available for the sale of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to Registrable Securities by the terms Selling Holders in accordance with the intended method or methods of this Agreementdistribution thereof; provided, however, that the Company may discontinue shall (i) before filing, furnish to one firm of counsel for the Selling Holders (selected by (A) DBSI with respect to the Initial Registration Statement or if DBSI requests a registration pursuant to Section 4.1(a)(x), (B) SP if SP requests a registration pursuant to Section 4.1(a)(y), or (C) by a Majority of the Majority Selling Holders in connection with a request pursuant to Section 4.1(a)(z) or a Piggyback Registration) and the managing underwriter, if any, within a reasonable period of time (but in any registration of its securities which are not Registrable Securities at any time event within three Business Days) prior to the effective date filing thereof with the SEC to afford to such counsel, the Selling Holders, the managing underwriter and its counsel a reasonable opportunity for review, copies of the registration statement relating thereto; provided, further that before filing such registration statement 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 (“Selling Holders”) copies of all such documents Prospectus proposed to be filed, which documents will be subject and (ii) consider in good faith such written comments as such counsel to the review of such counsel, Selling Holders and such review to be conducted with reasonable promptnessthe managing underwriter may reasonably propose;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect furnish, at its expense, to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder Holders such number of conformed copies of such registration statement the Registration Statement and each amendment thereto, of the Prospectus and each supplement thereto, 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 the Selling Holder and underwriter, if any, Holders reasonably may reasonably request in order writing from time to facilitate the public sale or other disposition of the Registrable Securities owned by such sellertime;
(ivc) use commercially reasonable efforts subject 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 Section 4.2 and Article VI, prepare and file with the SEC any Selling Holder amendments and any underwriter of post-effective amendments to 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 Registration Statement as may be necessary and any supplements 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 Prospectus as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (orrequired or appropriate, 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 view of the Company and its counsel, by the rules, regulations or any business acquired instructions applicable to the registration form used by the Company from which financial statements or by the Securities Act to keep the Registration Statement effective until the earlier of (i) such time as all shares of Common Stock covered by the Registration Statement cease to be Registrable Securities and financial data are(ii) the termination of the Required Period (giving effect to any extensions thereof pursuant to Section 4.2(b), Section 6.2 or are required to be, included in the registration statementSection 7.3);
(3d) promptly make available for inspection by any seller, any underwriter participating following its actual knowledge thereof (but 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”event within two Business Days), all financial notify the Selling Holders and other recordsthe managing underwriter, pertinent corporate documents and properties of the Company (collectivelyin writing, 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 any:
(i) the Company believeswhen a Registration Statement, after consultation with counsel for the CompanyProspectus, 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective any supplement or amendment to the registration statement has been filed and, with respect to the registration statement a Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
(2ii) of any request by the Commission SEC or any other governmental authority for amendments or supplements to the registration statement a Registration Statement, Prospectus or the prospectus Issuer Free Writing Prospectus or for additional information;
(3iii) of the issuance by the Commission SEC or any other governmental authority of any stop order suspending the effectiveness of the registration statement a Registration Statement or the initiation of any proceedings by any Person for that purpose;
(4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any written notification with respect to the suspension of the qualification or exemption from qualification of any the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) of the occurrence of any event during the period a Registration Statement is effective which makes any statement made in the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus untrue in any material respect or which requires the making of any changes in such Registration Statement, Prospectus or Issuer Free Writing Prospectus so that such Registration Statement, Prospectus or Issuer Free Writing Prospectus shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided, however, that no notice by the Company shall be required pursuant to this Section 7.1(d)(v) in the event that the Company either promptly files a Prospectus supplement to update the Prospectus or an appropriate Exchange Act report that is incorporated by reference into the Registration Statement, which, in either case, contains the requisite information that results in such Registration Statement no longer containing any untrue statement of a material fact or omitting to state a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading); and
(vi) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be required by applicable law (in which case the Company shall file the same as soon as practicable after such determination and use its reasonable best efforts to cause the same to become effective as soon as practicable following filing);
(e) use its reasonable best efforts to prevent the issuance of or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable date or, if any such order or suspension is made effective during any Blackout Period, at the earliest practicable date after the Blackout Period;
(f) prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify, or cooperate with the Majority Selling Holders, or counsel retained by the Selling Holders’ in accordance with Section 7.4, the managing underwriter, if any, and its counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as such counsel for the Selling Holders covered by a shelf Registration Statement or the managing underwriter of an Underwritten Offering of Registrable Securities reasonably requests in writing and do such other acts and things as may be reasonably necessary to maintain each such registration or qualification (or exemption therefrom) effective during the Required Period for such Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction in which it is not then so qualified or the initiation take any action which would subject it to general service of process or threat of taxation in any proceeding for such purposejurisdiction in which it is not then so subject;
(ixg) notify each Selling Holdersubject to Section 4.2 and Article VI, at any time when a prospectus relating thereto is required to be delivered under as promptly as reasonably practicable after the Securities Act, upon discovery that, or upon the happening occurrence of any event as contemplated by Sections 7.1(d)(v) or 7.1(d)(vi) hereof, use its reasonable best efforts to prepare (and furnish at its expense, subject to any notice by the Company in accordance with Section 7.1(d), to the Selling Holders a result reasonable number of whichcopies of) a supplement or post-effective amendment to the applicable Registration Statement or a supplement to the related Prospectus (including by means of an Issuer Free Writing Prospectus), the prospectus included in such registration statementor file any other required document so that, as then in effectthereafter delivered to the purchasers of the Registrable Securities being sold thereunder, includes an such Prospectus or Issuer Free Writing Prospectus shall not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, andin light of the circumstances under which they were made, at the request of any 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 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;
(xh) make every enter into such agreements (including an underwriting agreement), in usual and customary form, and take such other actions as may be reasonably requested by the Selling Holders or the managing underwriter, if any, to expedite the offer for sale or disposition of the Registrable Securities, and in connection therewith, upon such request and upon the date of closing of any sale of Registrable Securities in such Underwritten Registration:
(i) subject to the Selling Holders to whom the comfort letter is addressed providing a customary representation letter to the independent registered public accounting firm of the Company in form and substance reasonably satisfactory to such accountants, use its reasonable effort best efforts to obtain customary “comfort” letters from such accountants (to the withdrawal extent deliverable in accordance with their professional standards) addressed to the Selling Holder (to the extent consistent with Statement on Auditing Standards No. 100 of any order suspending the effectiveness American Institute of such registration statementCertified Public Accountants) and the managing underwriter, if any, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with Underwritten Offerings;
(xiii) otherwise use commercially its reasonable best efforts to obtain opinions of counsel to the Company (such counsel being reasonably satisfactory to the managing underwriter, if any) and updates thereof covering matters customarily covered in opinions of counsel in connection with Underwritten Offerings, addressed to each Selling Holder and the managing underwriter, provided, that the delivery of any “10b-5 statement” may be conditioned on the prior or concurrent delivery of a comfort letter pursuant to subsection (i) above; and
(iii) provide officers’ certificates and other customary closing documents customarily delivered in connection with Underwritten Offerings and reasonably requested by the managing underwriter, if any; provided that the Company shall only be required to comply with this clause (h): in connection with (x) the Effective Date of the Initial Registration Statement, (y) upon five (5) Business Day’s prior written notice of a proposed sale of Registrable Securities other than pursuant to an Underwritten Offering, and (z) an Underwritten Offering; provided, further, that the Company shall not be required to comply with clause (h) pursuant to subsection (y) and (z) more than twice in any consecutive twelve month period.
(i) upon reasonable notice and at reasonable times during normal business hours, make reasonably available for inspection by a representative of each Selling Holder, one firm of counsel for the Selling Holders retained in accordance with Section 7.4, the managing underwriter, if any, participating in any disposition of Registrable Securities and its counsel and any single accountant retained by any Selling Holder or any such underwriter, all financial and other records, pertinent corporate documents and properties (including site visits) of the Company, and cause the appropriate officers, directors and employees of the Company to be available to respond to questions and to make reasonably available for such inspection all such relevant information reasonably requested in writing by them in connection with the Registration Statement, each of the foregoing, as is customary for “due diligence” investigations; provided, however, that prior to the closing of the Rights Offering, that certain confidentiality agreement, dated February 27, 2007 signed by DBSI and that certain confidentiality agreement, dated February 27, 2007 signed by SP, shall govern such information, and after the closing of the Rights Offering any such Persons shall first enter into a confidentiality agreement with the Company providing that any information that is reasonably designated by the Company as confidential at the time of delivery shall be kept confidential by such Persons and shall be used solely for the purposes of exercising rights under this Agreement and such Persons shall not engage in trading any securities of the Company until such material non-public information becomes properly available, except nothing in such writing shall restrict (i) disclosure of such information if it is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information if it is required by law (including any disclosure requirements pursuant to federal or state securities laws in connection with any disposition of Registrable Securities), (iii) sharing information with other underwriters, agents or dealers participating in the disposition of any Registrable Securities, subject to the execution by such other underwriters, agents or dealers of reasonable non-disclosure agreements with the Company, (iv) using any such documents or other information in investigating or defending itself against claims made or threatened by purchasers, regulatory authorities or others in connection with the disposition of any Registrable Securities, (v) disclosure of such information if it becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such Person or (vi) disclosure of such information if it becomes available to any such Person from a source other than the Company and such source is not bound by a confidentiality agreement or confidentiality obligations or duties; and provided, further, that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Selling Holders and the other parties entitled thereto by the counsel to the Selling Holders retained in accordance with Section 7.4 or the counsel to the managing underwriter; and provided, further, that after the closing of the Rights Offering, the rights granted pursuant to this subsection may only be used in connection with a registration set forth in the proviso to Section 7.1(h) and subject to the limitations on frequency set forth therein;
(j) use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, SEC relating to such registration and make generally available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy its securityholders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Act; provided that the Company shall be deemed to have complied with this Section 7.1(j) if it has satisfied the provisions of Rule 158 thereunderunder the Securities Act (or any similar rule promulgated under the Securities Act);
(xiik) cooperate with use reasonable best efforts to cause all Registrable Securities covered by the sellers and applicable Registration Statement if the managing underwriter Common Stock is then listed on the NYSE or quoted on the NASDAQ to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities continue to be in such denominations and registered in such names as so listed or quoted following the managing underwriter or such sellers may request and keep available and make available offering;
(l) use reasonable best efforts to procure the cooperation of the Company’s transfer agent prior to the effectiveness in settling any offering or sale of such registration statement a supply of such certificates as necessary or appropriateRegistrable Securities;
(xiiim) 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 shall use its reasonable best efforts to cooperate provide such information as may be reasonably requested required for any filings required to be made by the Selling Holders and or managing underwriter, if any, with the underwriters National Association of Securities Dealers, Inc. (the “NASD”) in connection with the offering, marketing or selling offering under any Registration Statement of the Registrable Securities;
Securities (xiv) 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 such as may be required by NASD Rule 2710 or 2720), and, upon the “Plan of Distribution” written request of the Registrable Securities;
(xv) Majority Selling Holders, shall use reasonable best efforts to cooperate and assist in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and NASD in that regard on or prior to the performance filing of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRARegistration Statement; and
(xvin) otherwise use commercially reasonable best efforts to have officers of the Company attend “road shows” for Underwritten Offerings and analyst or investor presentations and such other selling or informational activities as are customary for transactions similar to the planned disposition of securities requested by the Majority Selling Holders or the managing underwriter for such offerings); provided, however, that in no event shall the Company be required to comply with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company this clause (n) more than once in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementany consecutive twelve month period.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hli Operating Co Inc), Registration Rights Agreement (Hli Operating Co Inc)
Registration Procedures. (a) If and whenever the Company Corporation is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 Section 5.1, Section 5.2, and 3.2Section 5.3, the Company Corporation shall as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably possible:
(i) prepare and file with the Commission SEC 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this AgreementAgreement and cause such registration statement to contain a “Plan of Distribution” that permits the distribution of securities pursuant to all legal means; provided, however, that the Company Corporation may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement statement, prospectus or any amendments thereto, the Company Corporation will furnish to the counsel selected by the holders of Stockholders which are including Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.15.1, the expiration of 60 ninety (90) days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.25.2, the expiration of 60 ninety (90) days after such registration statement becomes effective or (iii) in the case of a shelf registration pursuant to Section 5.3, the expiration of two (2) years after such registration statement becomes effective;
(iii) furnish to each Selling Holder Stockholder and each underwriter, if any, of the securities being sold by such Selling Holder Stockholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder Stockholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerSelling Stockholder;
(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 Stockholder and any underwriter of the securities being sold by such Selling Holder Stockholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder Stockholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling HolderStockholder, except that the Company Corporation shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to (B) subject itself to taxation in any such jurisdiction or to (C) 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 Corporation are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock National Securities Exchange or on which the Nasdaq Stock MarketCommon Shares are listed;
(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 Governmental Entities as may be necessary to enable the each Selling Holder(s) Stockholder thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder Stockholder and underwriter:
(1A) an opinion of counsel for the CompanyCorporation, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder Stockholder and underwriters, and
(2B) 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 CompanyCorporation’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);
(3viii) promptly make available for inspection by any sellerSelling Stockholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller Selling Stockholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityresponsibility in connection with such registration statement, and cause the CompanyCorporation’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 Corporation shall not be required to provide any information under this subparagraph (viii) if (i) the Company Corporation believes, after consultation with counsel for the CompanyCorporation, that to do so would cause the Company Corporation to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company Corporation has requested and been granted from the Commission SEC confidential treatment of such information contained in any filing with the Commission SEC or documents provided supplementally or otherwise or (B) the Company Corporation 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 Selling Stockholder requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the CompanyCorporation; and provided, further, that each Holder of Registrable Securities Selling Stockholder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company Corporation and allow the CompanyCorporation, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viiiix) promptly notify in writing each Selling Holder Stockholder and the underwriters, if any, of the following events:
(1A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) any request by the Commission SEC or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) the issuance by the Commission SEC or any other Governmental Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5D) the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling HolderStockholder, 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, and, at the request of any Selling Holder, and promptly prepare and furnish to such seller Selling Stockholder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make every use commercially reasonable effort efforts to prevent the issuance of and, if issued, obtain the withdrawal of any order suspending the effectiveness of such registration statementstatement or any suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to each Selling HoldersStockholder, as promptly soon as reasonably practicable, an earnings earning statement of the Corporation covering the period of at least 12 twelve (12) months, but not more than 18 eighteen (18) months, beginning with the first day of the CompanyCorporation’s first full quarter after the effective date of such registration statement, which earnings earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) cooperate with the sellers Selling Stockholders and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, ) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers Selling Stockholders may request and keep available and make available to the CompanyCorporation’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary certificates, or, if requested by a Selling Stockholder or appropriatean underwriter, to facilitate the delivery of such securities in book-entry form;
(xiiixiv) have appropriate officers of the Company Corporation prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its commercially reasonable best efforts to cooperate as reasonably requested by the Selling Holders Stockholders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter; provided, promptly incorporate in the registration statement or any prospectusthat such presentations, pursuant to a supplement or post-effective amendment if necessarymeetings, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating actions and efforts do not cause unreasonable disruption to the “Plan of Distribution” management of the Registrable SecuritiesCorporation’s business;
(xv) with respect to each Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule 159A(b) promulgated under the Securities Act) such Free Writing Prospectus or other materials without the prior written consent of the Stockholders holding the Registrable Securities covered by such registration statement, which Free Writing Prospectuses or other materials shall be subject to the prior reasonable review of the Selling Stockholders and their counsel;
(xvi) (A) as expeditiously as possible and within the deadlines specified by the Securities Act, make all required filings of all prospectuses and Free Writing Prospectuses with the SEC and (B) within the deadlines specified by the Exchange Act, make all filings of periodic and current reports and other materials required by the Exchange Act;
(xvii) as expeditiously as possible and within the deadlines specified by the Securities Act, make all required filing fee payments in respect of any registration statement or prospectus used under this Agreement (and any offering covered thereby);
(xviii) as expeditiously as practicable, keep the Selling Stockholders and their counsel advised as to the initiation and progress of any registration hereunder;
(xix) cooperate with each Selling Stockholder and assist each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. Authority (“FINRA”);
(xx) furnish the Selling Stockholders, their counsel and in the performance underwriters, as expeditiously as possible, copies of all correspondence with or from the SEC, the FINRA, any due diligence investigation by stock exchange or other self-regulatory organization relating to the registration statement or the transactions contemplated thereby and, a reasonable time prior to furnishing or filing any underwriter that is required such correspondence to the SEC, the FINRA, stock exchange or self-regulatory organization, furnish drafts of such correspondence to the Selling Stockholders, their counsel, and the underwriters for review and comment, such review and comment to be undertaken in accordance conducted with the rules and regulations of the FINRAreasonable promptness; and
(xvixxi) otherwise use commercially to take all other reasonable efforts steps necessary to comply with all applicable rules effect the registration and regulations disposition of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. Registrable Securities contemplated hereby.
(b) The Company Corporation may require each Selling Holder Stockholder and each underwriter, if any, to furnish the Company Corporation in writing such information regarding each Selling Holder Stockholder or underwriter and the distribution of such Registrable Securities as the Company Corporation may from time to time reasonably request to complete or amend the information required by such registration statement.
(bc) Without limiting any the terms of the foregoingSection 5.1(a), in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company Corporation, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company Corporation 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.
(cd) Each Selling Holder Stockholder agrees that upon receipt of any notice from the Company Corporation of the happening of any event of the kind described in Section 3.6(a)(ixSections 5.6(a)(ix)(C), 5.6(a)(ix)(D)), or 5.6(a)(x), such Selling Holder Stockholder shall forthwith discontinue (in the case of Section 5.6(a)(ix)(D), only in the relevant jurisdiction set forth in such notice) such Selling HolderStockholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling HolderStockholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix5.6(a)(x) and, if so directed by the CompanyCorporation, deliver to the CompanyCorporation, at the CompanyCorporation’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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.expe
Appears in 2 contracts
Sources: Stockholders Agreement (Rowan Marc J), Stockholders Agreement (Tango Holdings, Inc.)
Registration Procedures. (a) If and whenever Whenever McDonald's shall have made a Notice of Demand, the Company is required to shall use commercially all reasonable and diligent efforts to effect the registration and sale of any such Registrable Securities under Shares in accordance with the Securities Act as provided in Sections 3.1 and 3.2intended method or methods of disposition thereof and, pursuant thereto, the Company shall as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) within 30 days of receipt of such Notice of Demand, prepare and file with the 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 Commission, or designate an existing filing as, a Registration Statement with respect to such Registrable Shares and thereafter use commercially its reasonable best efforts to cause such registration statement Registration Statement to remain become effective pursuant to or otherwise make available for use by the terms sellers of this AgreementRegistrable Shares a previously filed effective Registration Statement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further provided that before filing such registration statement or designating a Registration Statement or Prospectus, or filing any amendments amendment thereof or supplement thereto, the Company will shall furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject filed or designated to counsel for the review sellers of such counsel, and such review to be conducted with reasonable promptnessRegistrable Shares;
(iib) prepare and file with the Commission such amendments (including pre- and post-effective amendments) amendments of and supplements to such registration statement Registration Statement and the prospectus Prospectus(es) used in connection therewith and any Exchange Act reports incorporated by reference therein as may be (i) reasonably requested by McDonald's; (ii) reasonably requested by any seller of Registrable Shares (to the extent such request relates to information relating to such seller); or (iii) necessary to keep such registration statement Registration Statement effective for the Registration Period, and to comply with the provisions of the applicable Securities Act Laws with respect to the sale or other disposition of all securities covered by such registration statement until the earlier of Registration Statement during such time as all of such securities have been disposed of period in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveStatement;
(iiic) furnish to each Selling Holder and each underwriter, if any, the sellers of Registrable Shares or counsel for 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), sellers such number of copies of such Registration Statement, the prospectus contained Prospectus(es) included in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectus) and Prospectus), any other prospectus filed under Rule 424 promulgated under the Securities ActAct relating to the sellers' Registrable Shares, any Issuer Free Writing Prospectuses, and each amendment of and supplement to any of the foregoing, 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, any seller may reasonably request in order to facilitate the public sale or other disposition of the its Registrable Securities owned by Shares under such sellerRegistration Statement;
(ivd) use commercially its reasonable and diligent efforts to register or qualify such Registrable Securities covered by such registration statement Shares under such other the securities laws or blue sky laws of such jurisdictions as any Selling Holder seller of Registrable Shares reasonably requests and keep such registration or qualification in effect for so long as any underwriter of the securities being sold by such Selling Holder shall reasonably requestRegistration Statement remains in effect, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities Shares owned by such Selling Holder, except it; provided that the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause subparagraph; (ivii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction; or to file a general (iii) consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable efforts to cause such notify each seller of Registrable Securities Shares, at any time when a Prospectus relating thereto is required to be listed on each securities exchange on which similar securities issued by delivered under the Company are then listed and, if no applicable Securities Laws (including in circumstances where 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 requirement 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 satisfied pursuant to any registration statement, Rule 172 under the Securities Act) 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statementRegistration Statement (including any document incorporated by reference therein that has not been superseded or modified), of the happening of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, at the request of any such seller, the Company shall promptly prepare and furnish to each such seller a reasonable number of copies of an amendment of or supplement to such Prospectus or an Issuer Free Writing Prospectus so that, as thereafter delivered to the purchasers of such Registrable Shares, such Prospectus shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that upon receipt of any notice delivered in accordance with the provisions of this Section 4(e), each seller of Registrable Shares shall be deemed to have agreed that such seller shall forthwith discontinue such disposition of Registrable Shares pursuant to such Registration Statement and Prospectus until the receipt of the copies of the amended or supplemented Prospectus or Issuer Free Writing Prospectus contemplated by this Section 4(e) and, if so directed by the Company, shall deliver to the Company all copies, other than permanent file copies, then in its possession of the Prospectus relating to such Registrable Shares current at the time of receipt of such notice;
(f) cause all such Registrable Shares to be listed, on or prior to the effective date of such Registration Statement, on each securities exchange or national market on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement;
(h) enter into such customary agreements (including underwriting agreements) and take all such other customary actions as the underwriters, if any, and their counsel reasonably request in order to expedite or facilitate the disposition of such Registrable Shares (including, but not limited to, effecting a stock split or a combination of shares) and, to the extent reasonably requested by the managing underwriters of any underwritten offering, send appropriate officers of the Company to attend "road shows" scheduled in connection with any such registration;
(i) make available for inspection by any seller of Registrable Shares, any underwriter participating in any sale or other disposition pursuant to such Registration Statement, and any legal counsel, accountant or other agent retained by McDonald's or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent registered public accountants (subject to any requesting party executing any document reasonably requested by such accountants to furnish such information) to supply all information reasonably requested by any such seller, underwriter, counsel, accountant or agent in connection with such Registration Statement (including the opportunity to discuss the business of the Company with its officers and the independent registered public accountants who have certified its financial statements) as shall be necessary, in the opinion of their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act; and give the sellers and their counsel, accountant or agent and each underwriter the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or each Prospectus filed with the Commission in connection therewith;
(j) promptly notify the sellers of Registrable Shares and each underwriter, if any:
(i) when such Registration Statement or any Prospectus or Issuer Free Writing Prospectus used in connection therewith has been filed and, with respect to such Registration Statement or any post-effective amendment thereof, when the same has become effective;
(ii) of any written comments from the Commission with respect to any filing referred to in clause (i) and of any written request by the Commission for amendments of or supplements to such Registration Statement, Prospectus or Issuer Free Writing Prospectus;
(iii) of the notification to the Company by the Commission or any other regulatory authority of its initiation of any proceeding with respect to, or of the issuance by the Commission or any other regulatory authority of, any stop order or notice suspending the effectiveness of such Registration Statement; and
(5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities Shares for sale under the applicable securities or blue sky laws of any jurisdiction jurisdiction; and, in the case of clauses (ii), (iii) and (iv), promptly use all reasonable and diligent efforts to, respectively, (A) respond satisfactorily to any such comments and to file promptly any necessary amendments or supplements; (B) prevent the initiation or threat issuance of any proceeding for stop order or to obtain its withdrawal if such purpose;
stop order should be issued; and (ixC) notify each Selling Holder, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness such suspension of such registration statementqualification;
(xik) upon request, furnish to each seller of Registrable Shares a signed counterpart, addressed to such seller (and each underwriter, if any) of:
(i) an opinion of counsel to the Company, dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller (and such underwriter); and
(ii) a "comfort" letter, dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the independent registered public accountants who have certified the Company's financial statements included in such Registration Statement, provided that such seller of Registrable Shares provides such accountants with such certificates as are reasonably and customarily requested by such accountants; in each case covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements and other financial matters, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities;
(l) otherwise use commercially all reasonable and diligent efforts to comply with all applicable rules and regulations of the Commission, Securities Laws and make available to Selling Holdersits security holders, as promptly soon as practicable, reasonably practicable an earnings earning 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 satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(xiim) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law)each seller, if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to agent participating in the Company’s transfer agent prior to the effectiveness disposition of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare Registrable Shares and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters their respective counsel in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in connection with any filings required to be made with the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc. Inc.; and
(“FINRA”n) and in at least 48 hours prior to the performance filing or designation of any due diligence investigation by Registration Statement, the filing of any underwriter Prospectus or Issuer Free Writing Prospectus or the filing of any amendment of or supplement to such Registration Statement, Prospectus or Issuer Free Writing Prospectus, furnish a copy thereof to the sellers of Registrable Shares or their legal counsel and refrain from filing or designating, as the case may be, any such Registration Statement, Prospectus, Issuer Free Writing Prospectus or amendment thereof or supplement thereto to which such counsel shall have reasonably objected on the grounds that is required to be undertaken such document does not comply in accordance all material respects with the requirements of the Securities Act or the rules and regulations of the FINRA; and
(xvi) 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. The Company may require each Selling Holder and each underwriterthereunder, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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)case of an amendment or supplement, in such denominations as requested and instruct any transfer agent and registrar the opinion of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from counsel for the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented filing or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 designation of such notice relating amendment or supplement is reasonably necessary to such Registrable Securities. In the event protect the Company shall give such notice, from any liabilities under 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented federal or amended prospectus state law and such prospectus shall have been filed with the Commissionfiling or designation will not violate applicable laws.
Appears in 2 contracts
Sources: Registration Rights Agreement (Chipotle Mexican Grill Inc), Registration Rights Agreement (Chipotle Mexican Grill Inc)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts by the provisions hereof to effect the registration of any the Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Act, the Company shall will, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) prepare and file with the Commission a registration statement with respect to effect such registrationsecurities, cause such registration statement promptly as possible respond to become effective at any comments received from the earliest possible date permitted under the rules Commission and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant for the period of the distribution contemplated thereby (determined as herein provided), and promptly provide to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) Purchaser copies of all such documents proposed to be filed, which documents will be subject to the review filings and Commission letters of such counsel, and such review to be conducted with reasonable promptnesscomment;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by the registration statement and to keep such registration statement effective until the earlier of: (i) six months after the latest exercise period of such time as 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 securities have been disposed of registration statement in accordance with the Purchaser's intended methods method of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after for such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveperiod;
(iiic) 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), Purchaser such number of copies of the prospectus contained in such registration statement and the prospectus included therein (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under as 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, Purchaser reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned securities covered by such sellerregistration statement;
(ivd) use its commercially reasonable efforts to register or qualify such the Purchaser's Registrable Securities covered by such registration statement under such other the securities laws or "blue sky sky" laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall Purchaser reasonably requestrequests; provided, 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 Holderhowever, except that the Company shall not for any such purpose be required to qualify generally to do transact business as a foreign corporation in any jurisdiction wherein where it would is not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by list 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 any securities exchange on which the Selling Holder(s) thereof to consummate Common Stock of the disposition of such Registrable SecuritiesCompany is then listed;
(viif) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for immediately notify 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event of which the Company has knowledge as a result of which, which the prospectus included contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any 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 purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in light of the circumstances then existing; and
(xg) make every reasonable effort to obtain available for inspection by the withdrawal of Purchaser and any order suspending attorney, accountant or other agent retained by the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with Purchaser all applicable rules publicly available, non-confidential financial and regulations of the Commissionother records, pertinent corporate documents and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day properties of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to cause the Company’s transfer agent prior 's officers, directors and employees to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agenciesall publicly available, as the case may be, and otherwise use its reasonable best efforts to cooperate as non-confidential information reasonably requested by the Selling Holders and the underwriters in the offeringattorney, marketing accountant or selling agent of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementPurchaser.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Digital Angel Corp), Registration Rights Agreement (Digital Angel Corp)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts by the provisions of this Agreement to effect the a registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Securities:
(a) The Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC, within the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (or on such other registration statement form available to effect such registrationthe Company that permits the greatest extent of incorporation by reference of materials filed by the Company under the Exchange Act or, if no incorporation by reference is permitted, any form then available to the Company), and will use its best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules as promptly as practicable (and, in any event, within sixty days) thereafter and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 90 days after such Registration Statement becomes effective, in the terms case of this Agreement; providedregistrations pursuant to Section 2, howeveror (2) 180 days after such Registration Statement becomes effective, that in the Company case of registrations pursuant to Section 3, in every case as any such period may discontinue any registration of its securities which are not Registrable Securities at any time prior be extended pursuant to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement subsection (h) 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;Section 8.
(iib) The Company shall prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement effective and for such period of time required by subsection (a), as such period may be extended pursuant to 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 until Registration Statement during the earlier of period during which any such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant Statement is required to Section 3.1, the expiration of 60 days after such registration statement becomes be effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;.
(iiid) The Company shall furnish to each Selling any Holder whose Registrable Securities are being registered hereunder and each underwriter, if any, any underwriter of the securities being sold by such Selling Holder Registrable Securities
(1) such number of copies (including manually executed and conformed copies copies) of such registration statement Registration Statement and of each amendment thereof and supplement thereto (in each case including all annexes, appendices, schedules and exhibits), (2) such number of copies of the prospectus contained used in connection with such registration statement Registration Statement (including each preliminary prospectus, any summary prospectus and any summary prospectusthe final prospectus and including prospectus supplements), and (3) and any such number of copies of other prospectus filed under Rule 424 under the Securities Actdocuments, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents each case as such Selling Holder and underwriter, if any, or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;request.
(ive) The Company shall use commercially reasonable its best efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities laws or "blue sky sky" laws of such jurisdictions states of the United States as any Selling Holder and whose Registrable Securities are being registered or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that jurisdictions; but the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdiction;subject.
(vf) The Company shall use commercially reasonable its 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 commercially reasonable efforts to cause such Registrable Securities covered by such registration statement Registration Statement to be registered with with, or approved by by, such other United States public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;.
(viig) The Company shall list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, 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 Holders' Agent, confirm such notification in connection with an Underwritten Offeringwriting, 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) when 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement and when a Registration Statement or any post-effective amendment theretothereto has been filed with and declared effective by the SEC, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission SEC of any stop order suspending or the effectiveness coming to its knowledge of the registration statement or the initiation of any proceedings by any Person for that purpose;
, (43) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ix4) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the Registration Statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder (through the Holders' Agent) a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (5) of the Company’s first full quarter after 's determination that the effective date filing of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 a Registration Statement shall be necessary or appropriate. Upon the “Plan of Distribution” of receipt by the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt Holders' Agent of any notice from the Company of the happening occurrence of any event of the kind described in Section 3.6(a)(ixclause (4), such Selling Holder the Holders shall forthwith discontinue such Selling Holder’s any offer and disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto Registration Statement covering such Registrable Securities until such Selling Holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 3.6(a)(ix) which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, Company all copies, copies (other than permanent file copies, ) of the defective prospectus covering such Registrable Securities which are then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable SecuritiesHolders' possession. In the event If the Company shall give such noticeprovide any notice of the type referred to in the preceding sentence, any applicable 60-day the period during which such registration statement must remain the Registration Statement is required by subsection (a) to be effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) is provided, to and including the date when all such Selling Holders shall receive have received copies of the corrected prospectus.
(i) The Company shall enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the disposition of such Registrable Securities, and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by the Holders of a supplemented majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar in scope to that customarily delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement, or amended prospectus and if such prospectus shall have been filed letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the CommissionCompany's financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such accountants under the then applicable standards of the American Institute of Certified Public Accountants with respect to such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pegasus Communications Corp), Registration Rights Agreement (Pegasus Communications Corp)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 5.1, 5.2 and 3.2, 5.3 the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC 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 Commission, SEC and thereafter use commercially reasonable best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (ix) in the case of a Demand Registration pursuant to Section 3.15.1, the expiration of 60 days after such registration statement becomes effective, or (iiy) in the case of a Piggyback Registration pursuant to Section 3.25.2, the expiration of 60 days after such registration statement becomes effectiveeffective or (z) in the case of a Shelf Registration pursuant to Section 5.3, the Shelf Registration Effectiveness Period;
(iii) 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 sellerSelling Holder;
(iv) use commercially 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, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to service of process in any such jurisdiction;
(v) use commercially 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 NASDAQ Stock Market;
(vi) use commercially 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 any underwriter:
(1A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and and/or underwriters, and
(2B) 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. 72AU 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 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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 SEC confidential treatment of such information contained in any filing with the Commission 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 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) any request by the Commission SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) the issuance by the Commission SEC or any of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4D) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding Proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holders, as promptly as practicable, an earnings statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers any Selling Holder and any underwriters and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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 as certificates, if necessary or appropriate;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter or the Majority Stockholders, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities and file or cause the filing of any registration statement under the Securities Act;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission SEC and all reporting requirements under the rules and regulations of the Exchange Act;
(xxii) cause any officer of the Company to participate fully in the sale process in a manner customary for persons in like positions and consistent with his or her other duties with the Company, including the preparation of the registration statement and the preparation and presentation of any road shows and other investor meetings; and
(xxiii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxii) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 SecuritiesSelling 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.
(cb) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix5.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.the
Appears in 2 contracts
Sources: Investor Rights Agreement (Chewy, Inc.), Investor Rights Agreement (Chewy, Inc.)
Registration Procedures. (a) If and whenever In connection with the Company is required to use commercially reasonable efforts to effect the Company’s registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2obligations hereunder, the Company shall as promptly as practicable (in each case, to the extent applicable):shall:
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare Prepare and file with the Commission such amendments (amendments, including post-effective amendments) amendments and supplements supplements, to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably practicable to any comments received from the Commission with respect to each Registration Statement or any amendment thereto, and to (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 registration statement a Registration Statement until the earlier of such time as all of such securities Registrable Securities shall have been disposed of (subject to the terms of this Agreement) in accordance with the intended methods of disposition by the seller or sellers Holders thereof as set forth in such registration statement Registration Statement as so amended or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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 statementsupplemented; provided, however, that, unless that each Holder shall be responsible for the disclosure delivery of the Prospectus to the Persons to whom such Records is necessary to avoid or correct a misstatement or omission in Holder sells any of the registration statement Shares or the release Warrant Shares (including in accordance with Rule 172 under the Securities Act), and Holder agrees to dispose of Registrable Securities in compliance with applicable federal and state securities laws.
(b) Notify each Holder as promptly as reasonably practicable, but in no event longer than seven (7) Trading Days after such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdictionevent, the Company shall not be required to provide any information under this subparagraph (viii) if (i) when the Company believesRegistration Statement has become effective, 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission or any other federal or state governmental authority for amendments or supplements to the registration statement a Registration Statement or the prospectus Prospectus or for additional information;
information that pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”, (3iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the registration statement Registrable Securities or the initiation of any proceedings by any Person governmental action, litigation, hearing or other proceeding (“Proceedings”) for that purpose;
, and (4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose.
(c) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as practicable.
(d) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or the initiation or threat file a general consent to service of process in any proceeding for such purpose;jurisdiction.
(ixe) notify each Selling If requested by a Holder, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter such Holder to facilitate the timely preparation and delivery of certificates (or book entry statements representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates or book entry statements shall not bear any be free, to the extent permitted by the Subscription Agreement and under law, of all restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statementlegends, and to enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter or any such sellers 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;reasonably request.
(xiiif) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;[Reserved.]
(xivg) 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;[Reserved.]
(xvh) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and[Reserved.]
(xvii) 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. The Company may require each Selling selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Company a certified statement as to (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.
(ci) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 shares of Common Stock beneficially owned by such Holder and any Affiliate thereof, (ii) any FINRA affiliations, (iii) any natural persons who have the period from the date of giving of a notice regarding the happening of an event power to vote or dispose of the kind described in Section 3.6(a)(ixCommon Stock and (iv) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with any other information as may be requested by the Commission, FINRA or any state securities commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp), Registration Rights Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Registration Procedures. (a) If In connection with SunCoke’s Registration obligations under Section 2.1 and whenever the Company is required to Section 2.2, SunCoke shall use commercially its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably 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 Registrable Securities under other form, 60 days from the Securities Act as provided date of such demand), and in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):connection therewith SunCoke shall:
(i) prepare and file the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the Commission SEC a registration statement to effect such registrationRegistration Statement or Prospectus, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments or supplements thereto, the Company will (A) furnish to the counsel selected by underwriters, if any, and to the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) , copies of all such documents proposed prepared to be filed, which documents will be subject to the review of such underwriters and such Holders and their respective counsel, and such review (B) not file with the SEC any Registration Statement or Prospectus or amendments or supplements thereto to be conducted with reasonable promptnesswhich Holders or the underwriters, if any, shall reasonably object;
(ii) except in the case of a Shelf Registration, Convertible Registration or Exchange Registration, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement of the Shares registered thereon until the earlier of (A) such time as all of such securities Shares have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (iB) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days 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);
(iiiii) in the case of a Piggyback Shelf Registration pursuant (but not including any Convertible Registration), prepare and file with the SEC such amendments and supplements to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveand 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;
(iiiiv) in the case of a Convertible Registration or an Exchange Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares subject thereto until such time as the rules, regulations and requirements of the Securities Act and the terms of the Convertible Securities no longer require such Shares to be registered under the Securities Act;
(v) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by SunCoke (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of SunCoke in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by SunCoke of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(vi) subject to Section 2.1(d), promptly notify each selling Holder and the managing underwriter or underwriters, if any, when SunCoke becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vii) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(viii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(ix) furnish to each Selling selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the securities being sold applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by such Selling reference and all exhibits (including those incorporated by reference);
(x) deliver to each selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits)underwriter, such number of if any, without charge, as many copies of the prospectus contained in such registration statement applicable Prospectus (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that SunCoke consents to the Securities Actuse of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in conformity connection with the requirements offering and sale of the Registrable Securities Act, and covered by such Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto) and such other documents as such Selling selling Holder and underwriter, if any, or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerHolder or underwriter;
(ivxi) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use commercially its reasonable best efforts to register or qualify qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities covered by such registration statement for offer and sale under such other the securities laws or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as any Selling selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action which may be acts or things reasonably necessary or advisable to enable keep such Selling Holder registration or qualification in effect for so long as such Registration Statement remains in effect and underwriter so as to consummate permit the disposition continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities owned covered by such Selling Holder, except the Registration Statement; provided that the Company shall SunCoke will not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein where it is not then so qualified or to take any action which would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself it to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject;
(vxii) use commercially reasonable efforts in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to cause such facilitate the timely preparation and delivery of certificates representing Registrable Securities to be listed on sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that SunCoke may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;
(xiii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority and each securities exchange exchange, if any, on which similar any of SunCoke’s securities issued by the Company are then listed and, if no such or quoted and on each inter-dealer quotation system on which any of SunCoke’s securities are so listedthen 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 commercially its reasonable best 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 the applicable 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) seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(viixiv) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that SunCoke may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;
(xv) obtain for delivery to and addressed to each selling Holder and to the underwriter or underwriters, if any, opinions from the general counsel or deputy general counsel for SunCoke, in each case dated the effective date of the Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, and in each such case in customary form and content for the type of Underwritten Offering;
(xvi) in connection with the case of an Underwritten Offering, obtain for delivery to and addressed to SunCoke and the managing underwriter or underwriters and, to the extent requested, each Selling Holder selling Holder, a cold comfort letter from SunCoke’s independent certified public accountants in customary form and underwriter:
(1) an opinion of counsel content for the Companytype of Underwritten Offering, covering dated 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 date 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 execution of the Company or any business acquired by underwriting agreement and brought down to the Company from which financial statements and financial data are, or are required to be, included in closing under the registration statement)underwriting agreement;
(3xvii) promptly use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable, but no later than 90 days after the end of the 12-month period beginning with the first day of SunCoke’s first quarter commencing after the effective date of the applicable Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder and covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first month after the effective date of the Registration Statement;
(xviii) provide and cause to be maintained a transfer agent and registrar for inspection 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 seller, of SunCoke’s securities are then listed or quoted and on each inter-dealer quotation system on which any underwriter of SunCoke’s securities are then quoted;
(xx) provide (A) each Holder participating in any disposition pursuant the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to any registration statementbe 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 seller or underwriter (collectivelyunderwriter, as selected by such Holder, the “Inspectors”)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 Company (collectively, independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods to discuss the “Records”), business of SunCoke and to supply all information available to SunCoke reasonably requested by any such Person in connection with such Registration Statement as shall be 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 subject to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statementforegoing; and
(5xxi) to cause the receipt by senior executive officers of SunCoke to participate at reasonable times and for reasonable periods in the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 customary “road show” presentations that 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as reasonably requested by the managing underwriter or underwriters in any such sellers may request Underwritten Offering and keep available otherwise to facilitate, cooperate with, and make available participate in each proposed offering contemplated herein and customary selling efforts related thereto, except to the Companyextent that such participation materially interferes with the management of SunCoke’s transfer agent prior to business; provided that the effectiveness of such registration statement period for any Demand Registration shall be increased on a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested day-for-day basis by the Selling Holders and the underwriters in the offering, marketing or selling period of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter time that is required to be undertaken in accordance with the rules and regulations of the FINRAmanagement cannot participate; and
(xvixxii) otherwise use commercially reasonable efforts take all other customary steps reasonably necessary to comply with all applicable rules and regulations effect the registration of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementcontemplated hereby.
(b) Without limiting As a condition precedent to any Registration hereunder, SunCoke may require each Holder as to which any Registration is being effected to furnish to SunCoke such information regarding the distribution of the foregoingsuch securities and such other information relating to such Holder, in the event that the offering its ownership 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.oth
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (SunCoke Energy, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 4.1, 4.2 and 3.24.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of and comment by such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.14.1, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.2, the expiration of 60 days after such registration statement becomes effectiveeffective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) 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 sellerSelling 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 commercially 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 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. 72AU 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 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker;”
(xiv) cooperate with the sellers any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 SecuritiesSelling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix4.5(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4.5(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.any
Appears in 2 contracts
Sources: Shareholder Agreement (Intrawest Resorts Holdings, Inc.), Shareholder Agreement (Intrawest Resorts Holdings, Inc.)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use commercially its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall shall, as promptly expeditiously as practicable possible (but, in each caseany 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 extent 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:
(ia) prepare and file all filings with the Commission SEC and FINRA required for the consummation of the offering, including preparing and filing with the SEC a registration statement to effect on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective at and remain continuously effective from the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement is declared effective until the earliest to remain effective 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 terms case of this Agreement; a shelf registration statement (provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that as far in advance as reasonably practicable before filing such a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company will furnish to one counsel for the counsel Holders participating in the planned offering (selected by the holders of Registrable Securities which are Majority Participating Holders) and to be included in such registration (“Selling Holders”) one counsel for the Manager, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counselcounsel (provided that the Company shall be under no obligation to make any changes suggested by the Holders), and such review the Company shall not file any registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to be conducted with reasonable promptnesswhich the Initiating Holders or the underwriters, if any, shall reasonably object);
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any such free writing prospectuses and Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement continuously effective for the period set forth in Section 2.4(a) 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 until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (and, in connection with any shelf registration statement, file one or more prospectus supplements pursuant to Rule 424 under the Securities Act covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(ic) in the case event of a Demand Registration pursuant to Section 3.1any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the expiration Manager of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveoffering;
(iiid) furnish furnish, without charge, to each Selling Participating Holder and each underwriter, if any, of the securities being sold covered by such Selling Holder registration statement such number of conformed copies of such registration statement and of statement, each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained included in such registration statement (including each preliminary prospectus and any summary prospectus) and ), any other prospectus filed under Rule 424 under the Securities ActAct and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder seller and underwriter, if any, underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerseller (the Company hereby consenting to the use in accordance with all applicable laws of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(ive) use commercially its reasonable best efforts to register or qualify such the Registrable Securities covered by such registration statement under such other securities laws or state “blue sky sky” laws of such jurisdictions as any Selling Holder and sellers of Registrable Securities or any underwriter of the securities being sold by such Selling Holder managing underwriter, if any, shall reasonably requestrequest in writing, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Holderjurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not not, but for the requirements of this clause paragraph (iv) e), be obligated required to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(vf) use commercially reasonable efforts to cause such Registrable Securities to be listed on promptly notify each securities exchange on which similar securities issued by the Company are then listed andParticipating Holder and each managing underwriter, 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;
any: (vii) 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 when 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 attorneypre-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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statementeffective amendment, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement or any free writing prospectus has been filed and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (2ii) of any request by the Commission SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
; (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
; (4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) 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 sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (ixv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening existence of any event as a result fact of whichwhich the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus included in related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such registration statement, as then in effect, includes purchaser containing an untrue statement of a material fact or omits omitting to state any a material fact required to be stated therein or necessary to make the statements any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, at if the request of any Selling Holdernotification 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 supplement to prospectus supplemented or an amendment of such prospectus as may be necessary amended 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 in the light of the circumstances under which they were made not misleading;
(xg) make every reasonable effort comply (and continue to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xicomply) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the CommissionSEC (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 Selling Holdersits security holders, as promptly soon as practicablereasonably 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 months, but not more than 18 months, consecutive months beginning with the first day of the Company’s first full fiscal quarter after the effective date of such the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiih) (i) (A) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by the Company as 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 FINRA, and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(i) 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 Securities covered by such registration statement not later than the effective date of such registration statement;
(k) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(l) use its reasonable best efforts (i) to obtain 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 registration statement, in each case, in customary form and 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 date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Majority Participating Holders, and (ii) furnish to each Holder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(m) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter, participating in any disposition to be effected pursuant to such registration statement and by any accountant or other agent retained by any Participating Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such counsel for a Participating Holder, counsel for an underwriter, accountant or agent in connection with such registration statement;
(n) use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness of the registration statement, or the prompt lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(o) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(p) use its best efforts to make available its senior management, employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(q) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, 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) 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 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;
(s) cooperate with the sellers Participating Holders and the managing underwriter underwriter, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.ce
Appears in 2 contracts
Sources: Registration Rights Agreement (Signify Health, Inc.), Registration Rights Agreement (Signify Health, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 4.1, 4.2 and 3.24.3, the Company shall as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably possible:
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.14.1, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the expiration of one year after such registration statement becomes effective;
(iii) furnish 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, 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 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);
(3viii) 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 SEC confidential treatment of such information contained in any filing with the Commission 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(54) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any 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 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;
(xxi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) 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 reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;; and
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix4.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4.6(a)(ix) and, if so directed by the 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 applicable 60-60 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix4.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Shareholder Agreement (Seacastle Inc.), Shareholder Agreement (Seacastle Inc.)
Registration Procedures. (a) If and whenever the Company is Whenever any Registrable Securities are required to be registered pursuant to this Agreement, the Corporation shall use commercially its reasonable best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Sections 3.1 intended method of disposition thereof and 3.2, pursuant thereto the Company Corporation shall as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) prepare and file with the Commission SEC a registration statement with respect to effect such registrationRegistrable Securities on Form S-1 or such other form of general applicability satisfactory to the managing underwriter (or if the offering is not underwritten, the holders of a majority of Registrable Securities included therein) and use its reasonable best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, (provided that the Company Corporation may delay or 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 effected under SECTION 4.1 in accordance with SECTION 4.1(d) or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included SECTION 4.2 in such registration (“Selling Holders”accordance with SECTION 4.2(f)) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including and post-effective amendments) and supplements amendments to such registration statement and supplements to the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective under the Securities Act and the blue sky laws of any applicable state for a period of not less than 90 days in the case of an underwritten offering, and in any other offering, until the disposition of all Registrable Securities covered by such registration statement, but not longer than a period of six months, unless at the expiration of such six month period, less than 75% of the Registrable Securities covered by such Registration Statement have been sold, then such period shall automatically be extended for six additional months; provided that at any time after the registration statement has been continuously effective for six consecutive months, if the Corporation determines in its reasonable business judgment that having such registration statement remain in effect would materially interfere with any financing, refinancing, acquisition, disposition, corporate reorganization or other material corporate transaction or development involving the Corporation or any of its Subsidiaries or at any time after such registration statement has been declared effective if the Corporation becomes the subject of an unsolicited tender offer for at least a majority of its equity securities, the Corporation may, upon prior written notice to each holder of Registrable Securities included therein, suspend such registration statement for a period of not more than ninety (90) days, and in no event shall the Corporation be entitled to exercise such right more than once in any 12-month period;
(b) before filing a registration statement or prospectus or any amendments or supplements thereto or incorporating any document by reference therein, the Corporation shall furnish to the holders of Registrable Securities included in such registration statement copies of all such documents proposed to be filed or incorporated therein, which documents shall be subject to the review and comment of such holders and one counsel selected by such holders;
(c) notify in writing each holder of Registrable Securities included in such registration statement of (i) the filing and effectiveness of such registration statement or any amendment or post-effective amendments thereto and the prospectus and any supplement thereto, (ii) any request by the SEC for amendments or post-effective amendments to the registration statement or supplements to the prospectus or for additional information, (iii) the issuance by the SEC of any stop order suspending the effectiveness of such registration statement or the initiation or threatening of any proceedings for that purpose, and (iv) the receipt by the Corporation of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(d) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until during the earlier of such time as all of such securities have been disposed of period of, and in accordance with the intended methods of of, disposition by the seller or sellers thereof as set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiie) furnish furnish, without charge, to each Selling Holder and each underwriter, if any, holder of the securities being sold by such Selling Holder such number of conformed copies of such Registrable Securities included in a registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of such registration statement, the prospectus contained included in such registration statement (including each preliminary prospectus prospectus), each amendment and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Actsupplement thereto, 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, holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities included therein owned by such seller;
(iv) holder and the Corporation hereby consents to the use commercially reasonable efforts to register of each prospectus or qualify any supplement thereto by each such holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or any amendment thereto;
(f) use its reasonable best efforts to register or qualify all Registrable Securities included in a registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder holder of such Registrable Securities reasonably requests and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter holder to consummate the disposition in such jurisdictions of the such Registrable Securities owned by such Selling Holder, except (provided that the Company Corporation shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause SUBPARAGRAPH (ivf), (ii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general (iii) consent to general 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);
(3g) 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 immediately notify each 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 included in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Holder, promptly and shall prepare and furnish a supplement or amendment 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 Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleading;
(xh) make every cause all Registrable Securities included in a registration statement to be listed on each securities exchange on which similar securities issued by the Corporation are then listed and, if not so listed, but similar securities are then listed on the NASD automated quotation system, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use its reasonable effort best efforts to obtain secure designation of all such Registrable Securities as a NASDAQ national market system security within the withdrawal meaning of Rule 11Aa2-1 of the SEC or failing that, at such time as the Corporation becomes eligible for such authorization, to secure NASDAQ authorization for such Registrable Securities if available and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD;
(i) if the offering is underwritten, use its reasonable best efforts to furnish on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration statement, and to the extent required by any underwriting agreement or from time to time upon request by any holder of Registrable Securities in connection with its disposition of its Registrable Securities under such registration statement: (i) an opinion dated such date of counsel representing the Corporation for the purposes of such registration, addressed to the underwriters and to each such holder, stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof appear on their face to be appropriately responsive in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or financial data contained therein) and (C) to such other effect as may be reasonably requested by counsel for the underwriters or by such holder or its counsel if such offering is not underwritten and (ii) to the extent accounting standards then permit, a letter dated such date from the independent public accountants retained by the Corporation, addressed to the underwriters and to each such holder, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Corporation included in the registration statementstatement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five Business Days prior to the date of such letter) with respect to such registration as such underwriters, or such holder if such offering is not underwritten, may reasonably request;
(xij) otherwise use commercially reasonable efforts to comply with provide a transfer agent and registrar for all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings Registrable Securities included in a registration statement covering the period of at least 12 months, but not more later than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, and a CUSIP number for all such Registrable Securities and provide the applicable transfer agent with printed certificates or instruments for such Registrable Securities which earnings statement shall satisfy are in a form eligible for deposit with Depositary Trust Corporation and otherwise meeting the provisions requirements of Section 11(a) of the any securities exchange on which such Registrable Securities Act and Rule 158 thereunderare then listed;
(xiik) cooperate with the sellers holders of Registrable Securities included in a registration statement and the managing underwriter underwriters, if any, to facilitate the timely preparation and delivery of certificates (which shall representing Registrable Securities to be sold not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, legends; and to enable such securities Registrable Securities to be in such denominations and registered in such names as the underwriters may request at least two Business Days prior to any sale of such Registrable Securities to the underwriters;
(l) enter into such customary agreements (including underwriting agreements in customary form) as the underwriters of any registration statement pursuant to an underwritten offering, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares);
(m) make available for inspection by any holder of Registrable Securities included in a registration statement, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Corporation as they deem necessary to conduct their due diligence review, and cause the Corporation's officers, directors, employees and independent accountants to supply all information reasonably requested by any such holder, underwriter, attorney, accountant or agent in connection with such registration statement;
(n) otherwise comply with the Securities Act, the Exchange Act, all applicable rules and regulations of the SEC and all applicable state blue sky and other securities laws, rules and regulations, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 30 days after the end of any 12 month period (or 90 days if the end of such 12 month period coincides with the end of a fiscal quarter or fiscal year, respectively) of the Corporation (A) commencing at the end of any month in which Registrable Securities are sold to underwriters in an underwritten offering, or, (B) if not sold to underwriters in such an offering, beginning within the first three months commencing after the effective date of the registration statement, which statements shall cover said 12 month periods;
(o) permit any holder of Registrable Securities which, in such holder's sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Corporation, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Corporation in writing, which in the reasonable judgment of such holder and its counsel should be included; and
(p) if the offering is underwritten, promptly upon notification to the Corporation from the managing underwriter or of the price at which the securities are to be sold under such sellers may request and keep available and make available registration statement, and, in any event, prior to the Company’s transfer agent effective date of the registration statement filed in connection with such registration, the Corporation shall advise each holder requesting inclusion of Registrable Securities in such registration statement of such price. If such price is below the price which is acceptable to a holder of Registrable Securities requested to be included in such offering, then such holder shall have the right, by written notice to the Corporation given prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agenciesstatement, as the case may be, and otherwise use to withdraw its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such its Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by included in such registration statement.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Stockholders Agreement (Exective Risk Indemnity Inc), Stockholders Agreement (Aegon Usa Investment Management Inc/Ia)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect the registration of the offer and sale of any Registrable Securities under the Securities Act as provided in Sections 3.1 1.1, 1.2 and 3.22, the Company shall as promptly as practicable (in each case, to the extent applicable):will promptly:
(ia) prepare prepare, and as soon as practicable, but in any event within 60 days thereafter, file with the Commission Commission, a registration statement with respect to effect the offer and sale of such registrationRegistrable 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 at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessas soon as practicable;
(iib) prepare and promptly file with the Commission such amendments (including and post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and for so long as is required to comply with the provisions of the Securities Act with respect and to complete the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth thereof, but in such registration statement or (i) in the case no event for a period of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days more than six months after such registration statement becomes effective;
(iiic) furnish copies of all documents proposed to be filed with the 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 Selling Holder and each underwriterseller of Registrable Securities, if anywithout charge, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), exhibits and documents filed therewith) and such number of copies of the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerseller in accordance with the intended method or methods of disposition thereof;
(ive) use commercially reasonable its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other the 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 each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition of such Registrable Securities in such jurisdictions in accordance with the intended method or methods of the Registrable Securities owned by such Selling Holderdisposition thereof, except 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 would is not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction wherein it is not so subject, or take any action which would subject it to file a general consent to service of process in any such jurisdictionjurisdiction wherein it is not so subject;
(vf) use commercially reasonable its 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 commercially reasonable efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies agencies, authorities or authorities self-regulatory bodies as may be necessary by virtue of the business and operations of the Company to enable the Selling Holder(s) seller or sellers thereof to consummate the disposition of such Registrable SecuritiesSecurities in accordance with the intended method or methods of disposition thereof;
(viig) furnish to the THL Parties, on behalf of the THL Group, and to RLB, if requested by him in connection with an Underwritten Offering, obtain for each Selling Holder and underwritera registration pursuant to Section 1.2:
(1i) an opinion of counsel for the CompanyCompany experienced in securities law matters, covering dated 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 effective date of 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 necessarysuch registration includes an underwritten public offering, any other independent registered public accountant of any subsidiary the date of the Company or any business acquired closing under the underwriting agreement); and
(ii) a "comfort" letter (unless the registration is pursuant to Section 2 and such a letter is not otherwise being furnished to the Company), dated the effective date of such registration statement (and if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the Company from which independent public accountants who have issued an audit report on the Company's financial statements and financial data are, or are required to be, 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;
(3h) 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 notify each 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for covered by such purpose;
(ix) notify each Selling Holder, registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event or existence of any fact as a result of which, 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 misleadingmisleading in light of the circumstances then existing, and, at the request of any Selling Holderas promptly as is practicable, 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 Registrable Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement of the Company (in form complying with the provisions of Rule 158 under the Securities Act) 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 month after the effective date of such registration statement;
(j) notify each seller of any Registrable Securities covered by such registration statement (i) when the prospectus or any prospectus supplement or post-effective amendment has been filed, which earnings and, with respect to such registration statement shall satisfy or any post-effective amendment, when the provisions same has become effective, (ii) of Section 11(aany request by the Commission for amendments or supplements to such registration statement or to amend or to supplement such prospectus or for additional information, (iii) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with issuance by the sellers and the managing underwriter to facilitate the timely preparation and delivery Commission of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to stop order suspending the effectiveness of such registration statement a supply or the initiation of any proceedings for that purpose and (iv) of the suspension of the qualification of such certificates as necessary securities for offering or appropriatesale in any jurisdiction, or of the institution of any proceedings for any of such purposes;
(xiiik) have appropriate officers use every reasonable effort to obtain the lifting of any stop order that might be issued suspending the effectiveness of such registration statement at the earliest possible moment;
(l) use its best efforts (i) (A) to list such Registrable Securities on any securities exchange on which the equity securities of the Company prepare and make presentations are then listed or, if 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 (B) 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 any “road shows” and before analysts and rating agencies, least two market makers to register as such with respect to such Registrable Securities with the case may beNASD, and otherwise use its reasonable best efforts (ii) to cooperate as reasonably provide a transfer agent and registrar for such Registrable Securities 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 Selling Holders and the underwriters in the offering, marketing or selling sellers of the Registrable SecuritiesSecurities or the lead underwriter;
(xivm) if requested by any Selling Holders enter into such agreements and take such other actions as the sellers of Registrable Securities 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 underwriters reasonably request in order to have included thereinexpedite or facilitate the disposition of such Registrable Securities, including, without limitation, information relating preparing for, and participating in, such number of "road shows" and all such other customary selling efforts as the underwriters reasonably request in order to the “Plan of Distribution” of the Registrable Securitiesexpedite or facilitate such disposition;
(xvn) cooperate furnish to any holder of such Registrable Securities such information and assist assistance as such holder may reasonably request in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any "due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAdiligence" effort which such seller deems appropriate; and
(xvio) otherwise use commercially reasonable its best efforts to comply with take all applicable rules and regulations other steps necessary to effect the registration of such Registrable Securities contemplated hereby. As a condition to its registration of the Commission offer and all reporting requirements under sale of Registrable Securities of any prospective seller, the rules and regulations of the Exchange Act. The Company may require each Selling Holder such seller of any Registrable Securities as to which any registration is being effected to execute powers-of-attorney, custody arrangements and each underwriter, if any, other customary agreements appropriate to facilitate the offering and to furnish to the Company in writing such information regarding each Selling Holder or underwriter such seller, its ownership of Registrable Securities and the distribution disposition of such Registrable Securities as the Company may from time to time reasonably request in writing and as shall be required by law in connection therewith. Each such holder agrees to complete or amend furnish promptly to the Company all information required to be disclosed in order to make the information required 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.
statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, which refers to (bin a capacity as a selling stockholder) Without limiting any seller of any Registrable Securities covered thereby by name, or otherwise identifies such seller as the foregoingholder of any Registrable Securities, in to which counsel to the event that sellers may reasonably object, without the offering prior written consent of such seller, which consent shall not be unreasonably withheld. Each holder 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix3(h), such Selling Holder shall forthwith holder will promptly discontinue such Selling Holder’s holder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if 3(h). If so directed by the Company, each holder of Registrable Securities will deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, then in such Selling Holder’s holder's possession of the prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event that the Company shall give any such notice, any applicable 60-day the period during which such registration statement must remain effective pursuant to this Agreement mentioned in Section 3(a) shall be extended by the number of days during the period from and including the date of the giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to and including the date when all each seller of any Registrable Securities covered by such Selling Holders registration statement shall receive such a have received the copies of the supplemented or amended prospectus and such prospectus shall have been filed with the Commissioncontemplated by Section 3(h).
Appears in 2 contracts
Sources: Registration Rights Agreement (NTK Holdings, Inc.), Securityholders Agreement (NTK Holdings, Inc.)
Registration Procedures. WorldPort shall:
(a) If and whenever the Company is required to use commercially Use its reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(iA) prepare and file with the Commission a registration statement with respect to effect such registrationthe Initial Stock within ninety (90) days after the Closing, cause (B) have such registration statement to become declared effective at within one hundred and fifty (150) days from the earliest possible date permitted under the rules and regulations of the CommissionClosing (one hundred and twenty (120) days if Worldport is, and thereafter remains, eligible to use commercially reasonable efforts a Form S-3 Registration Statement), and (C) to cause such the registration statement to remain effective pursuant until the earlier of (i) the date when all Registrable Securities related to the terms of this Agreement; providedInitial Stock have been sold, however, that or (ii) two (2) years from the Company may discontinue any Closing;
(b) Use its reasonable efforts to (A) prepare and file with the Commission a registration of its securities which are not Registrable Securities at any time prior statement with respect to the effective 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 relating thereto; provided, further that before filing such registration statement or any amendments thereto, to remain effective until the Company will furnish earlier of (i) the date when all Registrable Securities related to the counsel selected by Deferred Stock have been sold, or (ii) two (2) years from the holders date of Registrable Securities which are to be included issuance of the Deferred Stock as provided in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessPurchase Agreement;
(iic) Use its reasonable efforts to prepare and file with the Commission such amendments and supplements (including post-effective amendments) and supplements to such registration statement statements and the prospectus prospectuses used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such the registration statement statements effective for the period referred to in Section 2(a) and to Section 2(b) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such the registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such the registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiid) furnish Furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Registrable Securities such number of conformed copies of such the registration statement and of statement, each amendment and supplement thereto (in each case including all exhibitspost-effective amendments), such number of copies of the prospectus contained included in such the 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 sellerHolder;
(ive) use commercially reasonable efforts Notify each Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to register 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 qualify 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 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 registered pursuant 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 Agreement to be listed on each securities exchange on which similar securities issued by the Company WorldPort are then listed andlisted, 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 Marketany;
(vig) 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 If reasonably requested by a Holder promptly incorporate in a prospectus such Selling information as the Holder and underwriters, andindicates should be included relating to the plan of distribution.
(2h) a “comfort” letter (or, in Promptly notify the case Holders 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 Registrable Securities of the Company or any business acquired by the Company from which financial statements following events 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 if requested by any such Inspector Persons) confirm such notification 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 writing: (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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, and the registration statement and any Issuer Free Writing Prospectus amendment or post-effective amendment to the registration statement thereto and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
declaration of the effectiveness of such document; (2ii) any request requests by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
; (3iii) the issuance or threat of issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
; and (4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5iv) the receipt by the Company WorldPort of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat of initiation of any proceeding for such purpose;
(ixi) notify each Selling Holder, 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, and, at the request of any 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 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;
(x) make Make every reasonable effort to obtain prevent the withdrawal entry of any order suspending the effectiveness of the registration statement and, in the event of the issuance of any such registration statementstop order, or of any order suspending or preventing the use of any related prospectus, WorldPort shall use its reasonable efforts promptly to obtain the withdrawal of such order;
(xij) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning Cooperate with the first day selling Holders 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 Registrable Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall representing Registrable Securities to be sold and not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statementlegends, and enable such securities Registrable Securities to be in such denominations lots and registered in such names as the managing underwriter or such sellers Holders of Registrable Securities may request and keep available and make available to the Company’s transfer agent at least two business days prior to the effectiveness any delivery of Registrable Securities to such registration statement a supply Holders of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivk) if requested by any Selling Holders or any underwriterTo the extent required under the applicable state's law, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use commercially reasonable its best efforts to comply with (x) register or qualify all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required covered by such registration statement.
(b) Without limiting any statement under the state securities or "blue sky" laws of the foregoing, up to 10 states in the event that United States selected by Hostmark, (y) keep such registration in effect during the offering term of Registrable Securities is this Agreement and (z) take any other action which may be reasonably necessary or advisable to be made by or through an underwriter, enable 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 Holders of the Registrable Securities to release any stop transfer order with respect theretoconsummate the disposition of such Registerable Securities in such jurisdictions pursuant to the Registration Statement.
(cl) Each Selling Holder agrees Take actions similar to those set forth in clause (k) for such additional states as Hostmark may request in writing provided that upon receipt all of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), WorldPort's out-of-pocket costs and expenses related to taking such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then actions in such Selling Holder’s possession additional jurisdictions (including the reasonable fees and expenses 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 applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement WorldPort's legal counsel) shall be extended paid by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionHostmark.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sturm Donald L), Registration Rights Agreement (Worldport Communications Inc)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):will promptly:
(ia) subject to clauses (x), (y) and (z) of Section 3.1(b), prepare and file with the Securities and Exchange Commission as soon as practicable and in any event within 90 days, after receipt of a request pursuant to Section 3.1 a registration statement with respect to effect such registrationsecurities, make all required filings with the NASD and use best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessnearest practicable date;
(iib) prepare and file with the Securities and Exchange Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein such other documents 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) statement, but in the case no event for a period of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days more than six months after such registration statement becomes effective;
(iiic) 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 review of such counsel; the Company shall not file any registration statement or prospectus or any amendments or supplements thereto pursuant to a registration under Section 3.1(a) if the holders of a majority of the Registrable Securities covered by such registration statement, their counsel, or the underwriters, if any, shall reasonably object in writing;
(d) furnish to each Selling Holder and each underwriterseller of such securities, if anywithout charge, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case case, including all exhibitsexhibits and documents filed therewith (other than those filed on a confidential basis), except that the Company shall not be obligated to furnish any seller of securities with more than two copies of such exhibits and documents), such number of copies of the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities securities owned by such seller;
(ive) use commercially reasonable its best efforts to register or qualify such Registrable Securities the 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 each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Holderseller, 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 is not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction wherein it is not so subject, or take any action which would subject it to file a general consent to service of process in any such jurisdictionjurisdiction wherein it is not so subject;
(vf) use commercially reasonable efforts furnish to cause such Registrable Securities each seller a signed counterpart, addressed to be listed on each securities exchange on which similar securities issued by the Company are then listed andsellers, 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;of
(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:
(1i) an opinion of counsel for the CompanyCompany experienced in securities law matters, covering dated the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriterseffective date of the registration statement, and
(2ii) 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 issued an audit report on the Company’s '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 subject 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 having executed 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 delivered to the Company; independent public accountants such certificates and provideddocuments as such accountants shall reasonably request, 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 covering substantially the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, same matters with respect to the registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten Public Offerings of securities;
(i) notify each seller of any securities covered by such registration statement if such registration statement, at the time it or any amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable, prepare and file with the Securities and Exchange Commission a post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the such registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for and use best efforts to cause such post-effective amendment to become effective such that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the such registration statement; and
, 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 (5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixii) notify each Selling Holderholder 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, upon discovery that, or upon the happening of any event as a result of which, if the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at the request of any Selling Holderas promptly as is practicable, promptly prepare and furnish to such seller 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 Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xih) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to Selling Holdersits security holders, as promptly 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 day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy Company complying with the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderunder the Securities Act;
(xiii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery notify each seller of certificates any securities covered by such registration statement (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any i) when such registration statement, and enable or any post-effective amendment to such securities to be in such denominations and registered in such names as the managing underwriter registration statement, shall have become effective, or such sellers may request and keep available and make available any amendment of or supplement to the Company’s transfer agent prior prospectus used in connection therewith shall have been filed, (ii) of any request by the Securities and Exchange Commission to amend such registration statement or to amend or supplement such prospectus or for additional information, (iii) of the issuance by the Securities and Exchange Commission of any stop order suspending the effectiveness of such registration statement a supply or of any order preventing or suspending the use of any preliminary prospectus, and (iv) of the suspension of the qualification of such certificates as necessary securities for offering or appropriatesale in any jurisdiction, or of the institution of any proceedings for any of such purposes;
(xiiij) 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 (i) (x) to cooperate as reasonably requested list such securities on any securities exchange on which the Common Stock is then listed or, if no Common Stock is then listed, on an exchange selected by the Selling Holders Company, if such listing is then permitted under the rules of such exchange or (y) if such listing is not practicable or the Board determines that quotation as a NASDAQ National Market System security is preferable, to secure designation of such securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure NASDAQ authorization for such securities, and, without limiting the foregoing, to arrange for at least two market makers to register as such with respect to such securities with the NASD, (ii) to provide a transfer agent and registrar for such Registrable Securities not later than the underwriters in the offering, marketing or selling effective date of such registration statement and (iii) to obtain a CUSIP number for the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvik) otherwise use commercially every reasonable efforts effort to comply with all applicable rules and regulations obtain the lifting of any stop order that might be issued suspending the Commission and all reporting requirements under effectiveness of such registration statement or of any order preventing or suspending the rules and regulations use of the Exchange Actany preliminary prospectus. The Company may require each Selling Holder and each underwriter, if any, seller of any securities as to which any registration is being effected to furnish to the Company in writing such information regarding each Selling Holder or underwriter such seller and the distribution of such Registrable Securities securities as the Company may from time to time reasonably request in writing and as shall be required by law in connection therewith. Each such holder agrees to complete or amend furnish promptly to the Company all information required to be disclosed in order to make the information required 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.
(b) Without limiting any of the foregoing, in the 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 statement with respect to offerings of common stock for the account ofany Registrable Securities, or on behalf ofany 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 issuersconsent not to be unreasonably withheld, except that no such consent shall be required for any disclosure that is required by law. In connection with any offering By acquisition of Registrable Securities registered pursuant to this AgreementSecurities, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers each holder 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 shall be deemed to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees 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 3.6(a)(ix3.3(g), such Selling Holder shall forthwith holder will promptly discontinue such Selling Holder’s holder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’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 contemplated by Section 3.6(a)(ix) and, if 3.3(g). If so directed by the Company, each holder of Registrable Securities will deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, then in such Selling Holder’s holder's possession of the prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event that the Company shall give any such notice, any applicable 60-day the period during which such registration statement must remain effective pursuant to this Agreement mentioned in Section 3.3(b) shall be extended by the number of days during the period from and including the date of the giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to and including the date when all each seller of any Registrable Securities covered by such Selling Holders registration statement shall receive such a have received the copies of the supplemented or amended prospectus and such prospectus contemplated by Section 3.3(g). Notwithstanding any other provision of this Agreement, the parties hereto acknowledge that the Company shall have been filed with no obligation to prepare or file any registration statement prior to the Commissiontime 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. (a) If and whenever In connection with the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Resale Registration Statement, the Company shall as promptly as practicable (in each case, to the extent applicable):Buyer shall:
(i) prepare and file with the 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 Commission, and thereafter 1.4.1 use commercially reasonable efforts to cause the registration statement to become and remain effective for a continuous period of not less than two (2) years or, if earlier, until all of the Registrable Securities included in such registration statement to remain effective have been sold thereunder or the 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 manner of sale limitations, and shall use reasonable best efforts to as promptly as is practicable obtain the terms withdrawal of this Agreement; provided, however, that any order suspending the Company may discontinue registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any registration related prospectus in any jurisdiction with respect thereto;
1.4.2 notify as promptly as reasonably practicable each seller of its securities which are not Registrable Securities at any time prior to of each of (A) the effective date filing and effectiveness of the registration statement relating and prospectus and any amendment or supplements thereto; provided, further that before filing (B) the receipt of any comments from the Commission or any state securities law authorities or any other governmental authorities with respect to any such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration and (“Selling Holders”C) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act oral or written stop order with respect to such registration, any suspension of the disposition registration or qualification of all securities covered by such registration statement until the earlier sale of such time as all of such securities have been disposed of Registrable Securities in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effectiveany jurisdiction, or (ii) in any initiation or threatening of any proceedings with respect to any of the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveforegoing;
(iii) 1.4.3 if requested, furnish to each Selling Holder seller of Registrable Securities, the underwriters, and each underwriterthe sales or placement agent, if any, and counsel for each of the securities being sold by such Selling Holder such number of foregoing, a conformed copies copy of such registration statement and of each amendment and supplement thereto (in each case case, including all exhibits), 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 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, included in conformity with the requirements of the Securities Actsuch registration statement, and any Issuer Free Writing Prospectus prospectus supplements and all exhibits thereto and documents incorporated by reference therein, and such other documents as such Selling Holder and seller, underwriter, if anyagent, or counsel may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller; provided, that the Buyer shall have no obligation to provide any document pursuant to this section that is available on the Commission’s ▇▇▇▇▇ system;
(iv) 1.4.4 use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such jurisdictions as the holders of Registrable Securities reasonably request and do any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, all other acts and take any other action which things that may be reasonably necessary or advisable to enable such Selling Holder and underwriter the holders of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except holders and keep such registration or qualification in effect for so long as the registration statement remains effective under the Securities Act (provided that the Company Buyer shall not for any such purpose be required to (x) qualify generally to do business as a foreign corporation in any jurisdiction wherein in which it would not otherwise be required to qualify but for the requirements of this clause paragraph, (ivy) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction in which it would not otherwise be subject to taxation but for this paragraph, or to file a general (z) consent to the general service of process in any such jurisdictionjurisdiction in which it would not otherwise be subject to general service of process but for this paragraph);
(v) use commercially reasonable efforts to cause such Registrable Securities to be listed on 1.4.5 notify 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 seller 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct and the rules and regulations thereunder, upon the discovery that, or upon of the happening of any event as a result of which, the prospectus included in registration statement covering such registration statementRegistrable Securities, as then in effect, includes contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, and, at the request of any Selling Holder, and as promptly as reasonably practicable prepare and furnish to each such seller a reasonable number of copies of a supplement or amendment to or an amendment of the prospectus contained in such registration statement so that such Registration Statement shall not, and such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSecurities shall not, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or any fact necessary to make the statements therein not misleading;
(x) make every 1.4.6 use commercially reasonable effort efforts to obtain cause all Registrable Securities 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 withdrawal principal market on which or through which similar securities of any order suspending the effectiveness Buyer are then listed or traded;
1.4.7 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;
(xi) otherwise 1.4.8 use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available laws related to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply and offering and sale of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare securities and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of governmental authorities in connection therewith (including, without limitation, the Commission Securities Act and all reporting requirements under the rules and regulations Securities Exchange Act of 1934, as amended); and
1.4.9 permit any Holder, which Holder, in its reasonable judgment, might be deemed to be an underwriter or controlling Person of the Exchange Act. The Company may require each Selling Holder and each underwriter, if anyBuyer, to furnish participate in the Company in writing such information regarding each Selling Holder or underwriter and the distribution preparation of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until to require the insertion therein of material, furnished to the Buyer in writing, that in the reasonable judgment of such Selling Holder and such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement shall counsel should be extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionincluded.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Zogenix, Inc.), Sale and Purchase Agreement (Zogenix, Inc.)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect the or cause a registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 this Agreement, and 3.2at such times as customarily occur in registered offerings or shelf takedowns, as applicable, the Company shall as promptly as practicable (in each case, to the extent applicable):will:
(ia) Use all commercially reasonable efforts to prepare and file with the Commission SEC, a registration statement to effect such registration, cause such registration statement to become effective at within the earliest possible date permitted under the rules and regulations of the Commissiontime periods specified herein, and thereafter 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 (24) months after such registration statement becomes effective with respect to registrations pursuant to the terms of this Agreement; providedSection 2(a), however, in every case as any such period may be extended pursuant to Section 5(l) or Article 7 hereto (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 replace a shelf registration statement relating thereto; provided, further that before filing such filed on Form S-1 with a shelf registration statement or any amendments thereto, filed on Form S-3 as and when the Company will furnish becomes eligible to file S-3 registration statements as long as such a shelf registration statement filed on Form S-1 remains effective until such time as the counsel selected by the holders of Registrable Securities which are to be included in such replacement shelf registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessstatement filed on Form S-3 becomes effective);
(iib) prepare Prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for such period of time required by Section 5(a) above, as such period may be extended pursuant to Section 5(l) or Article 7 hereto;
(c) Within a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the Holders of the Registrable Securities being sold and to comply the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the Holders of the Registrable Securities being sold or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the 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 incorporated by reference into a registration statement or a prospectus, provide copies of such document to counsel for the Holders and underwriters; fairly consider such reasonable changes in such document prior to or after the filing thereof as counsel for such Holders or such underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
(e) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until during the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in period during which any such registration statement or (i) in the case of a Demand Registration pursuant is required to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes be effective;
(iiif) furnish Furnish to each Selling any Holder and each underwriterany underwriter of Registrable Securities, if any, of the securities being sold by such Selling Holder without charge (i) such number of copies (including manually executed and conformed copies copies) of such registration statement and of each amendment thereof and supplement thereto (in each case including all annexes, appendices, schedules and exhibits), (ii) such number of copies of the prospectus contained prospectus, used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and any summary the final prospectus), and (iii) and any such number of copies of other prospectus filed under Rule 424 under the Securities Actdocuments, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents each case as such Selling Holder and underwriter, if any, or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerrequest;
(ivg) use Use all commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement under such other the securities laws or “blue sky sky” laws of such jurisdictions states of the United States as any Selling Holder and or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holderjurisdictions; provided, except however, that the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdictionsubject;
(vh) use Cooperate with the Holders of the Registrable Securities being sold and the sole underwriter or managing underwriter of an underwritten offering shares, if any, to facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the Holders of the Registrable Securities being sold or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five (5) days prior to any sale of such shares;
(i) Use all 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 with, or approved by by, such other United States public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;
(viij) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for Use all commercially reasonable efforts to list the Company, covering the matters customarily securities 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 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 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 Holder, confirm such Inspector notification in connection with such registration statement; providedwriting, 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 when a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the a registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request been declared effective by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
SEC, (3ii) of the issuance by the Commission 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 by any Person for that such or a similar purpose;
, (4iii) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ixiv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the registration statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (v) of the Company’s first full quarter after determination that the effective date filing of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 Registration Statement shall be necessary or appropriate. Upon the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in clause (iv) or (v) of this Section 3.6(a)(ix5(l), such Selling Holder the Holders shall forthwith discontinue such Selling Holder’s any offer and disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 3.6(a)(ix) which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, all copies, copies (other than permanent file copies, ) of the defective prospectus covering such Registrable Securities which are then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable SecuritiesHolders’ possession. In the event If the Company shall give such noticeprovide any notice of the type referred to in the preceding sentence, any applicable 60-day the period during which such the registration statement must remain statements are required to be effective pursuant to this Agreement as set forth under Section 5(a) shall be extended by the number of days during the period from and including the date of giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) is provided, to and including the date when all such Selling Holders shall receive have received copies of the corrected prospectus; and
(m) Enter into such a supplemented agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or amended prospectus facilitate the disposition of such Registrable Securities (including, in the case of an underwritten offering, underwriting agreements in customary form, and such prospectus shall have been filed including provisions with respect to indemnification and contribution in customary form and consistent with the Commissionprovisions relating to indemnification and contribution contained herein), and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by any Holder of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company’s compliance with this Agreement including, without limitation, using all commercially reasonable efforts to cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities 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 letter can not be obtained through the exercise of all commercially reasonable efforts, cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the Company’s financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such accountants under the then applicable standards of the Association of Independent Certified Accountants with respect to such registration statement. In addition, the Company shall furnish to the Holders of Registrable Securities being included in any registration hereunder an opinion of counsel in substance and scope as are customarily delivered to underwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (MedQuist Holdings Inc.), Registration Rights Agreement (MedQuist Holdings Inc.)
Registration Procedures. (a) If and whenever In the case of the registration, qualification or compliance effected by the Company is required pursuant to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall will, upon reasonable request, inform each Holder as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission a registration statement to effect status of such registration, cause qualification and compliance. At its expense, in the case of a Registration Statement filed pursuant to Section 2.1 or Section 2.2, the Company will, during such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter time as any Holder holds Registrable Securities:
2.4.1. use commercially reasonable efforts to cause such registration statement Registration Statement to remain become effective and to prepare and file such amendments and post-effective amendments to the Registration Statement and any documents required to be incorporated by reference therein as may be necessary to keep the applicable Registration Statement filed and declared effective pursuant to the terms of this Agreement; provided, howeverand any related qualification or compliance under state securities laws which it is necessary to obtain, that 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 may discontinue any registration of its securities which are not Registrable Securities is required hereunder to keep the Registration Statement effective is referred to herein as the “Registration Period”).
2.4.2. at any time least five (5) Business Days prior to filing a Registration Statement and at least three (3) Business Days prior to the effective date filing of the registration statement relating thereto; provided, further that before filing such registration statement a prospectus or any amendments theretoor supplements to a Registration Statement or a prospectus (but not any periodic report to be incorporated by reference in a Registration Statement or a prospectus), the Company will shall furnish to the counsel selected by Holders of the holders of Registrable Securities which are to be included in covered by such registration (“Selling Holders”) Registration Statement and the underwriter or underwriters, if any, copies of or drafts of all such documents proposed to be filed, which documents will shall be subject to the reasonable review of such counsel, Holders and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriterunderwriters, if any, and the Company shall use commercially reasonable efforts to satisfy any objections with respect thereto raised by the Selling Holders, or the underwriters, if any;
2.4.3. in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the securities being sold by underwriter(s) of such Selling Holder offering;
2.4.4. furnish such number of conformed copies of such registration statement prospectuses 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 incident thereto as such Selling any Holder and underwriter, if any, from time to time may reasonably request in order to facilitate enable such Holder to consummate the public sale or other disposition of the Registrable Securities owned by such sellerHolder;
(iv) 2.4.5. use commercially reasonable efforts to timely 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 reasonably requests and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action acts and things 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 HolderHolder in such jurisdictions; provided, except that the Company shall will not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause Section 2.4, (ivB) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to (C) file a general consent to service of process in any jurisdiction unless the Company is already subject to service in such jurisdiction;
(v) use commercially reasonable efforts to cause 2.4.6. notify each Holder of such Registrable Securities to be listed on each securities exchange on which similar securities issued by as promptly as practicable (A) after becoming aware of 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 happening of any such Person event as a result of which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72Registration Statement, 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, prospectus 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”)Registration Statement, as shall be reasonably necessary to enable them to exercise their due diligence responsibilitythen in effect, 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretocontains 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, any Issuer Free Writing Prospectus or post-effective amendment (B) if the board of directors of the Company determines, in the good faith exercise of its business judgment, that the disposition of Registrable Securities pursuant to the registration statement andRegistration Statement would (I) require disclosure of material non-public information concerning the Company which, at such time, is not in the best interest of the Company, or (II) otherwise materially and adversely affect the Company or its stockholders because it would (1) materially interfere with respect to a material acquisition, corporate reorganization, or other similar transaction involving the registration statement or any post-effective amendment thereto, when the same has become effective;
Company; (2) any request by require premature disclosure of material information that the Commission Company has a bona fide business purpose for amendments preserving as confidential; or supplements to the registration statement or the prospectus or for additional information;
(3) render the Company unable to comply with requirements under the Securities Act or Exchange Act, (C) of the issuance by the Commission 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;
purpose or the receipt by the Company of written correspondence from the SEC notifying the Company that the SEC may undertake either of the foregoing or (4D) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) jurisdiction, and notify each Selling HolderHolder of such Registrable Securities when such events or circumstances have ended and the applicable Registration Statement is again available for use in connection with dispositions of Registrable Securities and, at any time when if appropriate, the Company will in connection therewith prepare a prospectus relating thereto is required supplement or amendment 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 statementthe applicable Registration Statement as promptly as reasonably practicable, as then but in effectany event within 60 days of the Company’s suspension notice, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any 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 purchasers of such Registrable Securities, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a material 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 to take such other commercially reasonable action as promptly as reasonably practicable as is necessary to remove a stop order, suspension, written notification from the SEC of the possibility thereof or proceedings related thereto. The Company shall not be permitted to suspend usage of the Registration Statement in the case of any event described in clause (A) or (B) of the preceding sentence more than a total of sixty (60) days in any twelve-month period;
2.4.7. notify each Holder of such Registrable Securities as promptly as practicable of (xA) make every reasonable effort the filing of the Registration Statement or any prospectus or prospectus supplement to obtain 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 withdrawal same has become effective; and (B) the receipt of any order suspending written comments from the effectiveness SEC with respect to any filing referred to in clause (A) and any written request by the SEC for amendments or supplements to the Registration Statement or any prospectus or prospectus supplement thereto;
2.4.8. upon request and subject to appropriate confidentiality arrangements between the parties, furnish to all Holders copies of all transmittal letters or other correspondence with the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) to the extent related to a Registration Statement filed pursuant to Section 2.1 or Section 2.2;
2.4.9. in the case of an Underwritten Offering, use commercially reasonable efforts to cause to be furnished, upon request of the underwriters, (i) an opinion of counsel for the Company dated the date of the closing under the underwriting agreement and (ii) a “comfort” letter, dated the pricing date of such registration statementUnderwritten Offering and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have audited any of the Company’s financial statements included or incorporated by reference into the Registration Statement, and each of the opinion and the “comfort” letter shall be in customary form and cover such matters with respect to such Registration Statement (and the prospectus and any prospectus supplement included therein) as such underwriters may reasonably request and which are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in similar Underwritten Offerings of securities;
(xi) 2.4.10. otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits security holders, as promptly 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 day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and 2.4.11. make available to the appropriate representatives of the Managing Underwriter and Holders access to such information and Company personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act to the extent such defense is available to such person; provided, that the Company need not disclose any non-public information to any such representative unless and until such representative has entered into a confidentiality agreement with the Company’s ;
2.4.12. provide a transfer agent prior to and registrar for all Registrable Securities covered by such Registration Statement not later than the effectiveness effective date of such registration statement a supply of such certificates as necessary or appropriateRegistration Statement;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 2.4.13. if requested by any Selling Holders a Holder and subject to review by the Company and approval by the Company, such approval not to be unreasonably withheld or any underwriterdelayed, promptly (i) incorporate in the registration statement or any prospectus, pursuant to a prospectus supplement or post-effective amendment if necessary, such information as such Selling Holders may Holder reasonably request requests to have be included therein, including, without limitation, information therein relating to the “Plan sale and distribution of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required , including information with respect to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event that the offering number of Registrable Securities is to be made by being offered or through an underwritersold, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities purchase price being paid therefor and agreements customarily included (but not inconsistent with the covenants and agreements any other terms 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.be sold in such offering and (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and
(c) Each Selling Holder agrees that upon receipt of any notice from 2.4.14. cause all such Registrable Securities to be listed or quoted on each securities exchange or nationally recognized automated quotation system on which similar securities issued by the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented are then listed or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionquoted.
Appears in 2 contracts
Sources: Registration Rights Agreement (Broadfin Capital, LLC), Registration Rights Agreement (Biodelivery Sciences International Inc)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 3.1, 3.2 and 3.23.3, the Company shall as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably possible:
(i) prepare and file with the Commission SEC 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 Commission, and thereafter use commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish upon request to the counsel selected by the holders of Shareholders which are including Registrable Securities which are to be included in such registration (“Selling HoldersShareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including post-post effective amendments), supplements (including prospectus supplements on a quarterly basis to update financial statements) and supplements “stickers” to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 90 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 90 days after such registration statement becomes effectiveeffective or (iii) in the case of a shelf registration pursuant to Section 3.3, the Shelf Registration Effectiveness Period;
(iii) furnish to each Selling Holder Shareholder and each underwriter, if any, of the securities being sold by such Selling Holder Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibitsexhibits 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder 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 sellerSelling Shareholder;
(iv) use commercially 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 Shareholder and any underwriter of the securities being sold by such Selling Holder Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling HolderShareholder, 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, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to service of process in any such jurisdiction;
(v) use commercially 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 Exchange, the NASDAQ Stock Market or the Nasdaq Stock Marketany other nationally recognized securities exchange;
(vi) use commercially 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(sShareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder Shareholder and underwriter:
(1A) 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 Shareholder and underwriters, and
(2B) 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. 72AU 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 accountants of any subsidiary Subsidiary of the Company or any business acquired by the Company from for which financial statements and financial data are, or are required to be, included in the registration statement);
(3viii) promptly make available for inspection by any sellerSelling 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 seller 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 Commission SEC confidential treatment of such information contained in any filing with the Commission 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 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 Holder of Registrable Securities 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;
(viiiix) promptly notify in writing each Selling Holder Shareholder and the underwriters, if any, of the following events:
(1A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement or any Issuer Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) any request by the Commission SEC or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) the issuance by the Commission SEC or any other Governmental Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; and
(E) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement;
(ixx) notify each Selling HolderShareholder, 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, and, at the request of any Selling HolderShareholder, 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 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;
(xxi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling HoldersShareholders, as promptly soon as reasonably practicable, an earnings statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) 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, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent public accountants, to participate in any due diligence discussions reasonably requested by any Selling Shareholder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of the Company’s securities;
(xviii) if requested by any Selling Holders 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 Holders Shareholders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Shareholders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder Shareholder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fortress Transportation & Infrastructure Investors LLC), Registration Rights Agreement (Fortress Transportation & Infrastructure Investors LLC)
Registration Procedures. (a) If and whenever the Company is required ----------------------- to use commercially reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 sections 2.1 and 3.22.2, the Company shall shall, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(i) prepare and (in the case of a registration pursuant to section 2.1, such filing to be made within 45 days after the initial request of one or more Initiating B-2 Holders or in any event as soon thereafter as possible) file with the Commission a the requisite registration statement to effect such registration, cause registration (including such registration statement to become effective at audited financial statements as may be required by the earliest possible date permitted under Securities Act or the rules and regulations of the Commission, promulgated thereunder) and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, however, 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, 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review review, but not the prior approval, of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration registration pursuant to Section 3.1section 2.1, the expiration of 60 180 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration registration pursuant to Section 3.2section 2.2, the expiration of 60 90 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder seller of Registrable Securities covered by such registration statement and each underwriter, if any, of the securities being sold by such Selling Holder seller such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of 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 documents, as such Selling Holder 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 sellerrequest;
(iv) use commercially reasonable its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder seller thereof and any underwriter of the securities being sold by such Selling Holder seller 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 or advisable to enable such Selling Holder seller and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Holderseller, 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 subdivision (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(v) use commercially reasonable its 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 commercially reasonable efforts to cause such 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 Selling Holder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viivi) in connection with an Underwritten Offering, obtain for furnish to 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 a signed counterpart, addressed to such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder seller and the underwriters, if any, of the following eventsof:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Quarterly Report, Preferred Stock Purchase Agreement (United Rentals Inc /De)
Registration Procedures. (a) If and whenever the Company is required to file a registration statement with respect to, or to use commercially reasonable its best efforts to effect or cause the registration of of, any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall will as promptly expeditiously as practicable possible:
(a) prepare and, in each case, any event within ninety (90) days after a request for registration is given to the extent applicable):
(i) prepare and Company pursuant to Section 2.2, file with the Commission SEC a registration statement on an appropriate form with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementbecome effective; provided, however, that the Company may discontinue any registration of Securities which it has initiated for its securities which are not Registrable Securities own account at any time prior to the effective date of the registration statement relating theretothereto (and, in such event, the Company shall pay the Registration Expenses incurred in connection therewith); and provided, further further, that before filing such a registration statement or prospectus, or any amendments or supplements thereto, the Company will (i) furnish to counsel for the counsel selected by the holders sellers of Registrable Securities which are to be included in covered by such registration (“Selling Holders”) statement copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, (ii) fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the sellers of Registrable Securities being sold may request, and (iii) make such review to of the representatives of the Company as shall be conducted with reasonable promptnessreasonably requested by the sellers of the Registrable Securities being sold available for discussion of such documents;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period not in excess of two (2) years (which period shall not be applicable in the case of a shelf registration effected pursuant to a request under Section 2.2(b)) and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities Securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided that before filing a registration statement or prospectus, or any amendments or supplements thereto, the Company will (i) in furnish to counsel for the case sellers of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after Registrable Securities covered by such registration statement becomes effectivecopies of all documents proposed to be filed, or which documents will be subject to the review of such counsel, (ii) fairly consider such reasonable changes in any such documents prior to or after the case filing thereof as the counsel to the sellers of a Piggyback Registration pursuant to Section 3.2Registrable Securities being sold may request, and (iii) make such of the expiration representatives of 60 days after the Company as shall be reasonably requested by the sellers of the Registrable Securities being sold available for discussion of such registration statement becomes effectivedocuments;
(iiic) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Registrable Securities such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibitsexhibits filed therewith, including any documents incorporated by reference), such number of copies of the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(ivd) use commercially reasonable its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of in such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller 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 jurisdictionseller;
(ve) 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 its 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) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify 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 seller 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 Registrable Securities covered 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, Company’s becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of any Selling Holdersuch seller, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to an amended or an amendment of such supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xig) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits Security holders, as promptly soon as practicable, an earnings statement covering the period of at least 12 months, reasonably practicable (but not more than 18 eighteen (18) months, beginning with the first day of the Company’s first full quarter ) after the effective date of such the registration statement, which an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiih) (1) use its best efforts to list such Registrable Securities on any securities exchange on which other Securities of the Company are then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange; and (2) use its best efforts to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including an underwriting agreement in customary form), which may include indemnification provisions in favor of underwriters and other Persons in addition to, or in substitution for the indemnification provisions hereof, and take such other actions as sellers of a majority of such Registrable Securities or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(j) obtain a “cold comfort” letter or letters from the Company’s independent public accountants in customary form and covering matters of the type customarily covered by “cold comfort” letters as the seller or sellers of a majority of such Registrable Securities shall reasonably request;
(k) make available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) notify counsel for the holders of Registrable Securities included in such registration statement and the managing underwriter or agent, immediately, and confirm the notice in writing: (i) when the registration statement, or any post-effective amendment to the registration statement, shall have become effective, or any supplement to the prospectus or any amendment to any prospectus shall have been filed; (ii) of the receipt of any comments from the SEC; (iii) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information; and (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(m) provide each holder of Registrable Securities included in such registration statement reasonable opportunity to comment on the registration statement, any post-effective amendments to the registration statement, any supplement to the prospectus or any amendment to any prospectus;
(n) make every reasonable effort to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(o) if requested by the managing underwriter or agent or any holder of Registrable Securities covered by the registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such holder reasonably requests to be included therein, including, with respect to the number of Registrable Securities being sold by such holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(p) cooperate with the sellers 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 (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities Securities to be sold under any the registration statement, and enable such securities Securities to be in such denominations and registered in such names as the managing underwriter or such sellers agent, if any, or the 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 as necessary or appropriaterequest;
(xiiiq) have appropriate use its best efforts to make available the executive officers of the Company prepare to participate with the holders of Registrable Securities and make presentations at any underwriters in any “road shows” and before analysts and rating agencies, as the case that may be, and otherwise use its reasonable best efforts to cooperate as be reasonably requested by the Selling Holders and the underwriters holders in the offering, marketing or selling connection with distribution of the Registrable Securities;
(xivr) if requested by any Selling Holders obtain for delivery to the holders of Registrable Securities being registered and to the underwriter or any underwriteragent an opinion or opinions from counsel for the Company in customary form and in form, promptly incorporate substance and scope reasonably satisfactory to such holders, underwriters or agents and their counsel; and
(s) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, disposition of such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate Securities and assist their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pinnacle Foods Inc.), Registration Rights Agreement (Pinnacle Foods Inc.)
Registration Procedures. (a) If In connection with the Company's registration obligations under Sections 2.1, 2.2 and whenever 2.3 hereof, the Company is required to will use commercially its reasonable best efforts to effect such registration to permit the registration sale of any such Registrable Securities under in accordance with the Securities Act intended method or methods of distribution thereof as provided in Sections 3.1 expeditiously as reasonably practicable, and 3.2, pursuant thereto the Company shall will as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably practicable:
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement a Registration Statement or Prospectus, or any amendments theretoor supplements thereto and in connection therewith, the Company will (x) furnish to the counsel selected by underwriters, if any, and to the holders of the Registrable Securities which are to be included in covered by such registration (“Selling Holders”) Registration Statement, copies of all such documents proposed prepared to be filed, which documents will be subject to the review of such counsel, underwriters and such review holders and their respective counsel and (y) except in the case of a registration under Section 2.3, not file any Registration Statement or Prospectus or amendments or supplements thereto to be conducted with reasonable promptnesswhich the holders of a majority of Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) and, in the case of a Demand Registration pursuant to Section 3.1Registration, the expiration of no later than 60 days after a request for a Demand Registration, file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such registration statement becomes effectiveRegistration Statement to become effective under the Securities Act; provided, however, that the Company may discontinue any Registration of its securities that are not Registrable Securities (and, under the circumstances specified in 2.1(c) may delay or suspend, and, under the circumstances specified in Section 2.3(a), may delay or discontinue, Registration of Registrable Securities) at any time prior to the effective date of the Registration Statement relating thereto;
(iii) prepare and file with the SEC such amendments and post-effective amendments to such Registration Statement and supplements to the Prospectus as may be (x) reasonably requested by the holders of a majority of the participating Registrable Securities, (y) reasonably requested by any participating holder (to the extent such request relates to information relating to such holder), or (iiz) necessary to keep such Registration effective for the Shelf Period (in the case of a Piggyback Registration pursuant to Section 3.2, Shelf Registration) or the expiration Demand Period (in the case of 60 days after such registration statement becomes effectivea Demand Registration);
(iv) notify the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing, as soon as reasonably practicable after notice thereof is received by the Company (i) when the Registration Statement or any amendment thereto has been filed or becomes effective, when the Prospectus or any amendment or supplement to the Prospectus has been filed, and, to furnish such selling holders and managing underwriter or underwriters, if any, with copies thereof, (ii) of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (iv) if, at any time, the representations and warranties of the Company contemplated by paragraph (xiv) below cease to be true and correct and in all material respects (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) promptly notify each selling holder of Registrable Securities and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of the Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement the Registration Statement or the Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling holders and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vi) make every reasonable effort to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus or suspending any qualification of the Registrable Securities at the earliest possible moment;
(vii) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an Underwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to, and the purchase price being paid therefor by, such underwriter or underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each Selling Holder selling holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such holder or managing underwriter may reasonably request of the securities being sold Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by such Selling Holder such number reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling holder of conformed copies of such registration statement Registrable Securities and of each amendment and supplement thereto (in each case including all exhibits)managing underwriter, such number of if any, without charge, as many copies of the prospectus contained in such registration statement Prospectus (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under amendment or supplement thereto as such holder or managing underwriter may reasonably request (it being understood that the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities Actand the underwriters, if any, in conformity connection with the requirements offering and sale of the Registrable Securities Act, and covered by the Prospectus or any Issuer Free Writing Prospectus amendment or supplement thereto) and such other documents as such Selling Holder and underwriter, if any, selling holder or managing underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerholder or underwriter;
(ivx) on or prior to the date on which the Registration Statement is declared effective, use commercially its reasonable best efforts to register or qualify qualify, and cooperate with the selling holders of Registrable Securities, the managing underwriter, underwriters or agent, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities covered by such registration statement for offer and sale under such other the securities laws or blue sky "Blue Sky" laws of such jurisdictions each state and other jurisdiction of the United States as any Selling Holder such selling holder, underwriter or agent, if any, or their respective counsel reasonably request in writing and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action which may be acts or things reasonably necessary or advisable to enable keep such Selling Holder registration or qualification in effect for so long as such Registration Statement remains in effect and underwriter so as to consummate permit the disposition continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Registrable Securities owned covered by such Selling Holder, except the Registration Statement; provided that the Company shall will not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein where it is not then so qualified or to take any action which would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself it to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject;
(vxi) use commercially reasonable efforts cooperate with the selling holders of Registrable Securities and the managing underwriter, underwriters or agent, if any, to cause 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 listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Company are then listed and, if no such securities are so listed, managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(xii) use commercially its reasonable best 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 the applicable 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) seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(viixiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in connection a form eligible for deposit with The Depository Trust Company;
(xiv) make such representations and warranties to the holders of Registrable Securities being registered, and the underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in secondary underwritten public offerings;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the holders of at least a majority of any Registrable Securities being sold or the managing underwriter or agent, if any, reasonably request in order to expedite or facilitate the registration and disposition of such Registrable Securities;
(xvi) obtain for delivery to the holders of Registrable Securities being registered and to the underwriter, underwriters or agent, if any, an opinion or opinions from counsel for the Company dated the effective date of the Registration Statement and, in the event of an Underwritten Offering, obtain for each Selling Holder brought down to the date of execution of the underwriting agreement (if different from such effective date) and underwriter:
(1) an opinion of to the closing under the underwriting agreement, in customary form, scope and substance, which counsel for the Company, covering the matters customarily covered in and opinions requested in underwritten offerings and such other matters as may shall be reasonably requested by satisfactory to such Selling Holder holders, underwriters or agents 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)their respective counsel;
(3xvii) promptly obtain for delivery to the Company and the underwriter, underwriters or agent, if any, with copies to the holders of Registrable Securities (unless precluded by applicable accounting rules), a cold comfort letter from the Company's independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xviii) cooperate with each seller of Registrable Securities and each underwriter or agent, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(xix) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable (but not more than fifteen months) after the effective date of the Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
(xx) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xxi) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which any of the Company's securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company's securities are then quoted;
(xxii) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by any sellera representative appointed by a majority of the sellers of such Registrable Securities covered by such Registration Statement, by any underwriter participating in any disposition to be effected pursuant to any registration statement, such Registration Statement and by any attorney, accountant or other agent or representative retained by such sellers or any such seller or underwriter (collectively, the “Inspectors”)underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company (collectivelyand to supply all information reasonably requested by any such seller, the “Records”)underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees responsibility (subject to supply all information requested by any such Inspector each party referred to in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct this clause (v) entering into customary confidentiality agreements in 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 form 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);
(viiixxiii) promptly notify in writing each Selling Holder and cause the underwriters, if any, senior executive officers of the following events:
(1) Company to participate in the filing of customary "road show" presentations that may be reasonably requested by the registration statementholders or the managing underwriter in any Underwritten Offering and otherwise to facilitate, the prospectus or any prospectus supplement cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5xxiv) promptly, after the receipt by issuance of an earnings release or upon the Company request of any notification a holder, prepare a current report on Form 8-K with respect to such earnings release or a matter of disclosure as requested by such holder and file such Form 8-K with the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;SEC.
(ixb) notify each Selling Holder, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, seller of Registrable Securities as to which any registration is being effected to furnish to the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such securities and such other information relating to such holder and its ownership of 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 the event that the offering writing. Each holder of Registrable Securities is agrees to be made by or through an underwriter, furnish such information to 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 to cooperate with the covenants and agreements of Company as necessary to enable the Company contained herein) by an issuer to comply with the provisions of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder holder of Registrable Securities agrees that 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 3.6(a)(ix)2.5(a)(v) hereof, such Selling Holder shall holder will forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto such Registration Statement until such Selling Holder’s holder's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by Section 3.6(a)(ix2.5(a)(v) hereof, or until it is advised in writing by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company, Company (at the Company’s '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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.copies th
Appears in 2 contracts
Sources: Registration Rights Agreement (TPG Partners Ii Lp), Registration Rights Agreement (Oxford Health Plans Inc)
Registration Procedures. (a) If and whenever In connection with the Company is required to use commercially reasonable efforts to effect the Company's registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2obligations hereunder, the Company shall as promptly as practicable (in each case, to the extent applicable):shall:
(i) prepare Prepare and file with the Commission such amendments, including post-effective amendments, to a registration statement Registration Statement and the Prospectus used in connection therewith as may be necessary to effect such registration, keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period; (ii) cause such registration statement the related Prospectus to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to the Securities Act; provided(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, however, that the Company may discontinue excise any registration of its securities information contained therein which are not Registrable Securities at any time prior would constitute material non-public information as to the effective date of the registration statement relating theretoInvestor); 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 and (iv) comply in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file material respects with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the applicable provisions of the Securities Act and the Exchange Act of 1934, as amended (the "Exchange Act") with respect to the disposition of all securities Registrable Securities covered by such registration statement until a Registration Statement during the earlier of such time as all of such securities have been disposed of applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the seller or sellers thereof Investor set forth in such registration statement Registration Statement as so amended or in such Prospectus as so supplemented.
(ib) in If during the case of Effectiveness Period the Company becomes eligible to file a Demand 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 Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
clauses (iii) 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;
through (vi) hereof, be accompanied by an instruction to suspend the 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 of the Prospectus until the requisite changes have been made) as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
promptly as reasonably possible (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 (i)(A) below, not less than one (1) Business Day prior to 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” letterfiling) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement and (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 Person) confirm 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 notice 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 in writing each Selling Holder and the underwriters, if any, of the following events:
no later than one (1) Business Day following the filing of the registration statement, the prospectus day (i)(A) when a Prospectus or any prospectus Prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the registration statement andCommission 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 registration statement a Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to the registration statement a Registration Statement or the prospectus or for additional information;
Prospectus, (3iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order “stop-order” suspending the effectiveness of a Registration Statement covering any or all of the registration statement Registrable Securities or the initiation of any proceedings by any Person Proceedings for that purpose;
; (4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) 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 under the securities or blue sky laws of in any jurisdiction jurisdiction, or the initiation or threat threatening of any proceeding Proceeding for such purpose;
; (ixv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as a result or passage of which, time that makes the prospectus financial statements included in such registration statementa 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, andin 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 qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the request earliest practicable moment.
(e) Furnish to each Investor, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(f) Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by Investor in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any Selling Holdernotice pursuant to Section 3(c).
(g) The Company shall cooperate with any broker-dealer through which an Investor proposes to resell its Registrable Securities in effecting a filing with FINRA, as requested by Investor, and the Company shall pay the filing fee required by such filing within two (2) Business Days of request therefor.
(h) Prior to any resale of Registrable Securities by an Investor, use its commercially reasonable efforts to register or qualify or cooperate with each Investor in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by an Investor under the securities or Blue Sky laws of such jurisdictions within the United States as an Investor reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(i) Upon the occurrence of any event contemplated by Section 3(c), as promptly as reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare and furnish a supplement or amendment, including a post-effective amendment, to such seller a reasonable number of copies of Registration Statement or a supplement to the related Prospectus or an amendment of such prospectus as may any document incorporated or deemed to be necessary incorporated therein by reference, and file any other required document so that, as thereafter delivered to the purchasers of delivered, neither a Registration Statement nor such Registrable Securities, such prospectus shall not include Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;. If the Company notifies Investor in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then Investor shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed ninety (90) calendar days (which need not be consecutive days) in any twelve (12) month period.
(xj) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply Comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;.
(xiik) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriterInvestor to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Investor and, if anyrequired by the Commission, to furnish the natural persons thereof that have voting and dispositive control over the shares. During any periods that the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time is unable to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in the 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 meet its obligations hereunder 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 registration of the Registrable Securities being sold solely because Investor fails to furnish such information within three (unless, in 3) Business Days of 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's request.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Subscription Agreement, Registration Rights Agreement (SolarWindow Technologies, Inc.)
Registration Procedures. (a) If and whenever the Company is required by the provisions of Section 2 or 3 to use commercially its reasonable efforts to effect the registration of any Registrable Securities of its securities under the Securities Act as provided in Sections 3.1 and 3.2Act, the Company shall will, as promptly expeditiously as practicable (in each case, to the extent applicable):is reasonably possible:
(ia) prepare and file with the Commission SEC a registration statement Registration Statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules securities and regulations of the Commission, and thereafter use commercially its reasonable efforts to cause such registration statement Registration Statement promptly to become and remain effective pursuant for a period of time required for the disposition of such Securities by the holders thereof but not to the terms of this Agreementexceed 60 days (except with respect to a Shelf Registration Statement which shall remain effective as set forth in Section 2(c)); provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments theretothereto (for purposes of this subsection, amendments shall not be deemed to include any filing that the Company is required to make pursuant to the Exchange Act), the Company will shall furnish the Selling Holders and the representatives referred to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”Section 5(n) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel. The Company shall not be deemed to have used its reasonable efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in the Holders of such Registrable Securities not being able to sell such Registrable Securities during that period, and unless such review to be conducted with reasonable promptnessaction is required under applicable law;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement (or additional Registration Statements as provided in Section 2(c)) and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement Registration Statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller a public offering or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after (except with respect to the Shelf Registration Statement, for which such registration statement becomes effective, or (ii) period is set forth in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective2(c));
(iiic) 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 the applicable Registration Statement and each such registration statement and of each amendment and supplement thereto (including in each case including all exhibits), such number and of copies of the a summary prospectus contained in such registration statement (or other prospectus, including each a 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 documents, as such Selling Holder and underwriter, if any, Holders may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerrequest;
(ivd) use commercially its reasonable efforts to register or qualify such Registrable Securities the securities covered by such registration statement Registration Statement under such other securities laws or blue sky laws of such jurisdictions within the United States and Puerto Rico as any Selling Holder and any or underwriter of the such securities being sold by such Selling Holder shall reasonably requestrequest (in light of the intended plan of distribution of such securities), to keep such registration or qualification in effect for so long as such Registration Statement remains in effect or until all Registrable Securities have been sold (whichever is earlier), and to 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 securities owned by such Selling HolderHolder (provided, except however, that the Company shall not for any such purpose be required in connection therewith or as a condition thereto to qualify generally to do business as business, subject itself to taxation in or to file a foreign corporation general consent to service of process in any jurisdiction wherein it would not but for the requirements of this clause paragraph (ivd) be obligated to do so; and provided, further, that the Company shall not be so qualified, required 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 qualify such Registrable Securities to be listed on each in any jurisdiction in which the 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 regulatory authority requires that any Selling Holder submit any shares of its Registrable Securities to be listed on the New York Stock Exchange terms, provisions and restrictions of any escrow, lockup or the Nasdaq Stock Market;
(visimilar agreement(s) use commercially reasonable efforts for consent to cause such sell Registrable Securities covered by in such registration statement jurisdiction unless such Holder agrees to be registered with or approved by do so), and do such other governmental agencies or authorities reasonable acts and things as may be necessary required of it to enable the Selling Holder(s) thereof such Holder to consummate the disposition in such jurisdiction of the securities covered by such Registrable SecuritiesRegistration Statement;
(viie) in connection with an Underwritten Offeringunderwritten offering, obtain for each Selling Holder and underwriter:
(1i) an opinion of independent legal counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2ii) 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);
(f) use its reasonable efforts to furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to Section 2 or 3, if such Registrable Securities are not being sold through underwriters, on the date that the registration statement with respect to 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 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 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 applicable accounting requirements of the Securities Act and (ii) covering such other financial matters (including information as to the period ending not more than five (5) Business Days prior to the date of such letters) with respect to the registration in respect of which such letter is being given as such Holders may reasonably request;
(g) enter into customary agreements (including if the method of distribution is by means of an underwriting, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or 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 Section 5(j)(v) above, promptly prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to the Holders, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with Section 5(j)(v) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Holders shall suspend use of such prospectus and use their reasonable efforts to return to the Company all copies of such prospectus (at the Company’s expense) other than permanent file copies then in such Holder’s possession, and the period of effectiveness of such Registration Statement provided for above shall be extended by the number of days from and including the date of the giving of such notice to the date Holders shall have received such amended or supplemented prospectus pursuant to this Section 5(m);
(n) subject to the execution of customary confidentiality agreements satisfactory in form and substance to the Company, pursuant to the reasonable request of the Selling Holders or applicable underwriters, make reasonably available for inspection by any sellerSelling Holders, any underwriter participating in any disposition pursuant to any registration statement, such Registration Statement and any attorney, accountant or other agent or representative retained by the Selling Holders or any representative of the Selling Holders or any such seller or underwriter (collectively, the “Inspectors”), all relevant 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 relevant information reasonably requested by such representative or any such Inspector underwriter, attorney, accountant or agent in connection with the registration; provided that any such registration statement; provided, however, that, unless inspection shall be done in a manner so as not to disrupt the disclosure operation of such Records is necessary to avoid or correct a misstatement or omission the Company’s business.
(o) in the registration statement or the release of such Records is ordered connection with any underwritten offering pursuant to a subpoena which Registrable Securities are offered by Holders in accordance with Section 2 or other order from a court 3 hereof, make appropriate officers of competent jurisdictionthe Company available to the Selling Holders (and, in connection with any underwritten offering, the Company shall not be required underwriters) for diligence and for meetings with prospective purchasers of the Registrable Securities and prepare and present to provide any information under this subparagraph (viii) if (i) potential investors customary “road show” material in each case in accordance with the Company believes, after consultation recommendations of the underwriters and in all respects in a manner consistent with counsel for the Company, that to do so would cause the Company to forfeit other new issuances of securities in an attorney-client privilege that was applicable offering of a similar size 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 offering of the Records deemed confidential;
(viii) promptly notify Registrable Securities, in writing each Selling Holder and the underwriters, if any, connection with any proposed sale of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statementRegistrable Securities; and
(5p) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations procure the cooperation of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior in settling any offering or sale of Registrable Securities, including with respect to the effectiveness transfer of such registration statement a supply of such physical stock certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at into book-entry form in accordance with any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as procedures reasonably requested by the Selling Holders and or the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to underwriters. It shall be 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 condition precedent to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 obligation 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 take any offering of Registrable Securities registered action pursuant to this Agreement, Agreement in respect of the Company Registerable Securities which are to be registered at the request of any Holder that such Holder shall furnish to the underwriter, if any (or, if no underwriter, the sellers of Company such Registrable Securities), unlegended certificates representing ownership of information regarding the Registrable Securities being sold (unless, in held by such Holder and 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 intended method of disposition thereof as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of shall reasonably request and as shall be required in connection with the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed action taken by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Subscription Agreement (Azure Power Global LTD), Subscription Agreement (Azure Power Global LTD)
Registration Procedures. In the case of each registration, qualification or compliance effected by the Company pursuant to this Agreement, the Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its expense the Company will:
(a) If prepare and whenever (within thirty (30) days after the end of the period within which requests for registration may be given to the Company is required to use commercially reasonable efforts to effect the registration of or in any Registrable Securities under the Securities Act event as provided in Sections 3.1 and 3.2, the Company shall soon thereafter as promptly as practicable possible) (in each casethe case of a registration pursuant to Section 2.1, such filing to be made within thirty (30) days after the extent applicable):
(iinitial request of one or more Initiating Holders or in any event as soon thereafter as possible) prepare and file with the Commission a the requisite registration statement to effect such registration, cause registration (including such registration statement to become effective at audited financial statements as may be required by the earliest possible date permitted under the rules and regulations of the Commission, Securities Act) and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant to in compliance with the terms provisions of this Agreement; the Securities Act, provided, howeverthat, 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements (including, without limitation, any document incorporated by reference or deemed to be incorporated by reference therein) to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) furnish to each Selling seller of Registrable Securities covered by such registration statement and each Holder and each underwriterunderwriter or agent, if any, of the securities being sold by such Selling Holder seller such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibitsexhibits 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder seller and underwriterunderwriter or agent, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(ivd) use commercially reasonable its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder seller thereof and any underwriter or agent of the securities being sold by such Selling seller and any Holder shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder seller and underwriter or agent to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Holderseller, except that 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 would not but for the requirements of this clause paragraph (ivd) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable its 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 commercially reasonable efforts to cause such 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 Selling Holder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify each Selling Holder and underwriter:
(1) an opinion seller of counsel for the Company, covering the matters customarily Registrable Securities 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or immediately upon the happening of any event as a result of which, the prospectus (including any amendment or supplement thereto) included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements statement therein not misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of any Selling Holder, 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 to, or an amendment of of, such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made;
(xg) make every reasonable effort provide and cause to obtain be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the withdrawal of any order suspending the effectiveness effective date of such registration statement;
(xih) otherwise use commercially reasonable its best efforts to comply with list all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Registrable Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of covered by such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers on any securities exchange on which any of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, securities of the same class as the case may beRegistrable Securities are then listed and, and otherwise if not so listed, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use its reasonable best efforts to cooperate as reasonably requested secure designation of all such Registrable Securities covered by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the such registration statement or any prospectus, pursuant to as a supplement or postNASDAQ “national market system security” within the meaning of Rule 11Aa2-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations 1 of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriteror, if anyfailing that, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of secure NASDAQ authorization for such Registrable Securities as and, without limiting the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any generality of the foregoing, in the 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 arrange for at least two market makers to register as such with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionNASD.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (PRN Corp)
Registration Procedures. (a) If and whenever In the case of each registration, qualification or compliance effected by the Company is required pursuant to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Registration Rights Agreement, the Company shall will keep the holders of the Registrable Securities advised in writing as promptly as practicable (in each case, to the extent applicable):initiation of each registration, qualification and compliance and as to the completion thereof. At its expense, the Company will:
(i) 2.5.1 prepare and file with the Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules securities and regulations of the Commission, and thereafter use its commercially reasonable efforts to cause such registration statement to become and remain effective until, with respect to the Registration Statement filed pursuant to Section 2.1, two years after the terms date 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 this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior with a reasonable opportunity to review the effective date registration statement before the filing of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, with the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessCommission;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act 2.5.3 with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1an Underwritten Public Offering, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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), underwriter such number of copies of the prospectus contained in such registration statement (a prospectus, including each a 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, 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;
(iv) 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 commercially its reasonable best efforts to register or qualify such the Registrable Securities or other shares of Common Stock covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter the holders of the securities being sold by such Selling Holder Registrable Securities shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect and take to do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter the holders of the Registrable Securities to consummate the disposition in such jurisdictions of any such Registrable Securities or other shares of Common Stock owned by the holders of the Registrable Securities owned by such Selling HolderSecurities; PROVIDED, except HOWEVER, that the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause Section 2.5.6, (ivii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general (iii) consent to general service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause such Registrable Securities to be listed on 2.5.7 notify 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 CompanySecurities, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any a time when a prospectus relating thereto to such Registrable Securities is required to be delivered under the Securities Act, upon discovery that, or upon of the happening occurrence of any event known to the Company as a result of which, which the prospectus included in such registration statement, as then in effect, includes contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances under which they were made; and, at the request of any Selling Holderholder of Registrable Securities, promptly the Company shall prepare and furnish to such seller 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering 2.5.8 during the period of at least 12 monthswhen the prospectus is required to be delivered under the Securities Act, but not more than 18 months, beginning promptly file all documents required to be filed with the first day of the Company’s first full quarter after the effective date of such registration statementCommission pursuant to Sections 12(a), which earnings statement shall satisfy the provisions of Section 11(a13(c), 14 or 15(d) of the Securities Exchange Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies1934, as amended (the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by "Exchange Act"); and
2.5.9 on the Selling Holders and the underwriters in the offering, marketing or selling prior written request of the any holder of Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement file such prospectus supplements or post-effective amendment if necessary, such information amendments to any registration statement filed pursuant to Article II hereof as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist be required in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 transfer of the Registrable Securities being sold (unless, in the Company’s sole discretion, rights under this Registration Rights Agreement by such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations holder as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect theretopermitted under Section 2.9 hereof.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Reimbursement Agreement (Industrial Holdings Inc), Reimbursement Agreement (Industrial Holdings Inc)
Registration Procedures. (a) If and whenever Whenever the Company is required to use commercially reasonable efforts to effect Purchaser requests the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall use its reasonable best efforts to register and permit the sale of the Registrable Securities in accordance with the intended method of disposition, and to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchaser. If the Company is not eligible to use Form S-3 at the time of filing, and the Company subsequently becomes eligible to use Form S-3, the Company shall file, as promptly as practicable reasonably practicable, a new Registration Statement on Form S-3 covering the resale of the Registrable Securities and replace the Registration Statement on Form S-1 with the new Registration Statement on Form S-3 upon the effectiveness of the new Registration Statement on Form S-3.
(in each case, to the extent applicable):b) The Company shall use its best efforts to:
(i) prepare and file with the Commission SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary or advisable to keep the Registration Statement current and effective for the Registrable Securities held by the Purchaser for a period ending on the earlier of (i) the date on which all Registrable Securities may be sold pursuant to Rule 144 under the Securities Act or any successor rule (“Rule 144”) during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1), or (ii) such time as all Registrable Securities have been sold pursuant to a registration statement to effect such registrationor Rule 144. The Company shall notify the Purchaser promptly upon the Registration Statement and each post-effective amendment thereto, cause such registration statement to become being declared effective by the SEC and advise the Purchaser that the form of Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the earliest possible date permitted 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 rules and regulations Securities Act that meets the requirements of Section 10(a) of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessAct;
(ii) prepare and file with furnish to the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act Purchaser with respect to the disposition of all securities covered by such registration statement until Registrable Securities registered under the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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), Statement such number of copies of the prospectus contained in such registration statement Registration Statement and the Prospectus (including each preliminary prospectus and any summary prospectussupplemental prospectuses) and any other prospectus filed under Rule 424 under with the Securities Act, SEC in conformity conformance with the requirements of the Securities Act, Act and any Issuer Free Writing Prospectus and other such other documents as such Selling Holder and underwriter, if any, the Purchaser may reasonably request request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities owned by such sellerthe Purchaser;
(iii) make any necessary blue sky filings;
(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 pay 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 expenses incurred by the Company are then listed andand the Purchaser in complying with Section 5, if no such securities are so listedincluding, 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 all 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 Offeringand filing fees, obtain for each Selling Holder FINRA fees, exchange listing fees, printing expenses, fees and underwriter:
(1) an opinion disbursements of counsel for the Company, covering blue sky fees and expenses and 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 expense of any special audits incident to or required by any such Person which does not satisfy registration (but excluding attorneys’ fees of the conditions for receipt Purchaser and any and all underwriting discounts and selling commissions applicable to the sale of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed Registrable Securities 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 statementPurchaser);
(3v) advise the Purchaser, promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant after it shall receive notice 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 obtain knowledge 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order by the SEC delaying or suspending the effectiveness of the registration statement Registration Statement or of the initiation of any proceedings by any Person proceeding for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any Selling Holder, and it will 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by prevent the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance issuance of any due diligence investigation by any underwriter that is required stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be undertaken in accordance with the rules and regulations of the FINRAissued; and
(xvivi) otherwise use commercially reasonable efforts with a view to comply with all applicable rules making available to the Purchaser the benefits of Rule 144 and regulations any other rule or regulation of the Commission and all reporting requirements under SEC that may at any time permit the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, Purchaser to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such sell Registrable Securities as to 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 the event that the offering of Registrable Securities is to be made by or through an underwriterpublic without registration, 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 agrees to: (i) make and keep public information available, as such term is understood and defined in Rule 144, until the earlier of the Company contained herein(A) 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 date as all of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are qualify to be issued in uncertificated form resold immediately pursuant to Rule 144 or any other rule of similar effect during any three-month period without the customary arrangements requirement for issuing shares the Company to be in compliance with the current public information required under Rule 144(c)(1) or (B) such form), in such denominations date as requested and instruct any transfer agent and registrar all of the Registrable Securities shall have been resold pursuant to release Rule 144 (and may be further resold without restriction); (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Purchaser upon request, as long as the Purchaser owns any stop transfer Registrable Securities, (A) a written statement by the Company as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order with respect thereto.
(c) Each Selling Holder agrees that upon receipt to avail the Purchaser of any notice from rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. The Company understands that the Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Purchaser is deemed an underwriter does not relieve the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionobligations it has hereunder.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp), Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp)
Registration Procedures. (a) If and whenever In connection with the obligations of the Company is required with respect to any registration pursuant to this Agreement, the Company shall use its commercially reasonable efforts to effect or cause to be effected the registration of any the Registrable Securities Shares under the Securities Act to permit the sale of such Registrable Shares by the Holder or Holders in accordance with the Holders or Holders’ intended method or methods of distribution, and the Company shall:
(a) (i) notify FBR and Review Counsel, in writing, at least ten (10) Business Days prior to filing a Registration Statement, of its intention to file a Registration Statement with the Commission and, at least five (5) Business Days prior to filing, provide a copy of the Registration Statement to FBR and Review Counsel for review and comment; (ii) prepare and file with the Commission, as specified in this Agreement, a Registration Statement(s), which Registration Statement(s) shall (A) comply as to form in all material respects with the requirements of the Securities Act and the applicable form and include all financial statements required by the Commission to be filed therewith and (B) be acceptable to FBR, its counsel and Review Counsel; (iii) at least three (3) Business Days prior to filing, provide a copy of such amendment or supplement to FBR and Review Counsel for review and comment; (iv) promptly following receipt from the Commission, provide to FBR and Review Counsel copies of any comments made by the staff of the Commission relating to such Registration Statement and of the Company’s responses thereto for review and comment; and (v) use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable after filing and to remain effective, subject to Section 6 hereof, until the earlier of (A) such time as all Registrable Shares covered thereby have been sold in accordance with the intended distribution of such Registrable Shares, (B) there are no Registrable Shares outstanding or (C) the first anniversary of the effective date of such Registration Statement (subject to extension as provided in Sections 3.1 Section 6(c) hereof and 3.2the condition that the Registrable Shares have been transferred to an unrestricted CUSIP, are listed or included on the New York Stock Exchange or the Nasdaq Global Market, pursuant to Section 5(n) of this Agreement, or on an alternative trading system with the Registrable Shares qualified under the applicable state securities or “blue sky” laws of all fifty (50) states), and can be sold under Rule 144 without limitation as to manner of sale, volume or current public information; provided, however, that the Company shall not be required to cause the IPO Registration Statement to remain effective for any period longer than ninety (90) days following the effective date of the IPO Registration Statement (subject to extension as provided in Section 6(c) hereof); provided, further, that if the Company has an effective Shelf Registration Statement on Form S-1 (or other form then available to the Company) under the Securities Act and becomes eligible to use Form S-3 or such other short-form registration statement form under the Securities Act, the Company may, upon thirty (30) Business Days prior written notice to all Holders, register any Registrable Shares registered but not yet distributed under the effective Shelf Registration Statement on such a short-form Shelf Registration Statement and, once the short-form Shelf Registration Statement is declared effective, de-register such shares under the previous Registration Statement or transfer the filing fees from the previous Registration Statement (such transfer pursuant to Rule 429, if applicable) unless any Holder registered under the initial Shelf Registration Statement notifies the Company within fifteen (15) Business Days of receipt of the Company notice that such a registration under a new Registration Statement and de-registration of the initial Shelf Registration Statement would interfere with its distribution of Registrable Shares already in progress, in which case, the Company shall as promptly as practicable delay the effectiveness of the short-form Registration Statement and termination of the then-effective initial Registration Statement or any short-form Registration Statement for a period of not less than thirty (in each case30) days from the date that the Company receives the notice from such Holders requesting a delay;
(b) subject to Section 5(i) hereof, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including and post-effective amendments) and supplements amendments to each such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein Registration Statement as may be necessary to keep such registration statement Registration Statement effective for the period described in Section 5(a) hereof; (ii) cause each Prospectus contained therein to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act; and (iii) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until each Registration Statement during the earlier of such time as all of such securities have been disposed of applicable period in accordance with the intended method or methods of disposition distribution by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveselling Holders thereof;
(iiic) furnish to each Selling Holder and each underwriterthe Holders, if anywithout charge, of the securities being sold by such Selling Holder such number of conformed as many copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits)Prospectus, 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 ActProspectus, and any Issuer Free Writing Prospectus amendment or supplement thereto and such other documents as such Selling Holder and underwriter, if any, may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Securities owned Shares, and hereby does consent to the use of such Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the offering and sale of the Registrable Shares covered by any such sellerProspectus, subject to Section 6 hereof;
(ivd) use its commercially reasonable efforts to register or qualify such qualify, or obtain exemption from registration or qualification for, all Registrable Securities covered Shares by such registration statement the time the applicable Registration Statement is declared effective by the Commission under such other all applicable state securities laws or “blue sky sky” laws of such jurisdictions as FBR or any Selling Holder and any underwriter of the securities being sold Registrable Shares covered by such Selling Holder a Registration Statement shall reasonably requestrequest in writing, keep each such registration or qualification or exemption effective during the period such Registration Statement is required to be kept effective pursuant to Section 5(a) and take do any and all other action which acts and things that may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in each such jurisdictions jurisdiction of the such Registrable Securities Shares owned by such Selling Holder; provided, except however, that the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein or to register as a broker or dealer in such jurisdiction where it would not otherwise be required to qualify but for this Section 5(d) and except as may be required by the requirements of this clause Securities Act, (ivii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or (iii) submit to file a the general consent to service of process in any such jurisdiction;
(ve) use its commercially reasonable efforts to cause such all 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 Shares covered by such registration statement Registration Statement to be registered with or and approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) Holders thereof to consummate the disposition of such Registrable SecuritiesShares;
(viif) in connection with an Underwritten Offering, obtain for notify FBR and 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 (promptly and, if necessary, any other independent registered public accountant of any subsidiary of the Company requested by FBR or any business acquired by the Company from which financial statements and financial data areHolder, or are required to be, included confirm such advice 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 writing (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 when a Registration Statement has requested become effective 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or when any post-effective amendment thereto, when the same has amendments and supplements thereto become effective;
, (2ii) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of the registration statement a Registration Statement or the initiation of any proceedings by any Person Proceeding for that purpose;
, (4iii) when of any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt request by the Company Commission or any other federal, state or foreign governmental authority for (A) amendments or supplements to a Registration Statement or related Prospectus or (B) additional information and (iv) of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event during the period a Registration Statement is effective as a result of which, which such Registration Statement or the prospectus included in such registration statement, as then in effect, includes an related Prospectus or any document incorporated by reference therein contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, misleading (which information shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) and (v) at the request of any Selling such Holder, promptly prepare and to furnish to such seller Holder a reasonable number of copies of a supplement to or an amendment of such prospectus Prospectus as may be necessary so that, as thereafter delivered to the purchasers purchaser of such Registrable Securitiessecurities, such prospectus Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(xg) make every use its commercially reasonable effort efforts to avoid the issuance of, or if issued, to obtain the withdrawal of of, any order enjoining or suspending the use or effectiveness of such registration statementa Registration Statement or suspending the qualification of (or exemption from qualification of) any of the Registrable Shares for sale in any jurisdiction, as promptly as practicable;
(xih) upon request, promptly furnish to each requesting Holder of Registrable Shares covered by a Registration Statement, without charge, one conformed copy of such Registration Statement and any post-effective amendment or supplement thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(i) except as provided in Section 6 hereof, upon the occurrence of any event contemplated by Section 5(f)(iv) hereof, use its commercially reasonable efforts to promptly prepare a supplement or post-effective amendment to a Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(j) if requested by the representative of the underwriters, if any, or any Holders of Registrable Shares being sold in connection with such offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the representative of the underwriters, if any, or such Holders indicate relates to them or that they reasonably request be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(k) in the case of an Underwritten Offering, use its commercially reasonable efforts to furnish to each Holder of Registrable Shares covered by such Registration Statement and the underwriters a signed counterpart, addressed to each such Holder and the underwriters, of (i) an opinion of counsel for the Company, addressed to the underwriters, dated the date of each closing under the underwriting agreement, reasonably satisfactory to such Holder and the underwriters, and (ii) a “comfort” letter, addressed to the underwriters and the Board of Directors, dated the effective date of such Registration Statement and the date of each closing under the underwriting agreement, signed by the independent public accountants who have certified the Company’s financial statements included in such Registration Statement, covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants’ letters delivered to underwriters in underwritten public offerings of securities and such other financial matters as such Holder and the underwriters may reasonably request;
(l) enter into customary agreements (including in the case of an Underwritten Offering, an underwriting agreement in customary form and reasonably satisfactory to the Company) and take all other reasonable action in connection therewith in order to expedite or facilitate the distribution of the Registrable Shares included in such Registration Statement and, in the case of an Underwritten Offering, make representations and warranties to the Holders covered by such Registration Statement and to the underwriters in such form and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same to the extent customary if and when requested;
(m) subject to execution of such confidentiality agreements as may reasonably be requested by the Company, make available for inspection by representatives of the Holders and the representative of any underwriters participating in any disposition pursuant to a Registration Statement and any special counsel or accountants retained by such Holders or underwriters, all financial and other records, pertinent corporate documents and properties of the Company and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representatives, the representative of the underwriters, counsel thereto or accountants in connection with a Registration Statement; provided, however, that the representatives of the Holders and any underwriters will use commercially reasonable efforts, to the extent practicable, to coordinate the foregoing inspection and information gathering and not materially disrupt the Company’s business operations;
(n) use its commercially reasonable efforts (including, without limitation, seeking to cure any deficiencies cited by the exchange or market in the Company’s listing or inclusion application) to list or include all Registrable Shares on the New York Stock Exchange or the Nasdaq Global Market;
(o) prepare and file in a timely manner all documents and reports required by the Exchange Act and, to the extent the Company’s obligation to file such reports pursuant to Section 15(d) of the Exchange Act expires prior to the expiration of the effectiveness period of the Registration Statement as required by Section 5(a) hereof, the Company shall register the Registrable Shares under the Exchange Act and shall maintain such registration through the effectiveness period required by Section 5(a) hereof;
(p) provide a CUSIP number for all Registrable Shares, not later than the effective date of the Registration Statement;
(q) (i) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and (ii) make generally available to Selling Holdersits stockholders, as promptly soon as reasonably practicable, an earnings statement statements covering the period of at least 12 months, but not more than 18 months, twelve (12) 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 the Registration Statement that satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, but in no event later than forty-five (45) days after the end of each fiscal year of the Company, and (iii) not file any Registration Statement or Prospectus or amendment or supplement to such Registration Statement or Prospectus to which any Holder of Registrable Shares covered by any Registration Statement shall have reasonably objected on the grounds that such Registration Statement or Prospectus or amendment or supplement does not comply in all material respects with the requirements of the Securities Act, each Holder having been furnished with a copy thereof at least two (2) Business Days prior to the filing thereof;
(xiir) cooperate with the sellers provide and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities cause to be in such denominations maintained a registrar and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to for all Registrable Shares covered by any Registration Statement from and after a date not later than the effectiveness effective date of such registration statement a supply of such certificates as necessary or appropriateRegistration Statement;
(xiiis) have appropriate officers of the Company prepare and make presentations at in connection with any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing sale or selling transfer of the Registrable Securities;
Shares (xiv) if requested by any Selling Holders whether or any underwriter, promptly incorporate in the registration statement or any prospectus, not 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;
(xvRegistration Statement) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and that will result in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.delivered
Appears in 2 contracts
Sources: Registration Rights Agreement (Select Energy Services, Inc.), Registration Rights Agreement (Select Energy Services, Inc.)
Registration Procedures. (a) If and whenever In the case of each registration, qualification, or compliance effected by the Company is required 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 effect cause the registration Registration Statement to become and remain effective at least for a period ending with the first to occur of any (A) the sale by the Holders of all Registrable Securities covered by the Registration Statement, (B) the availability under Rule 144 for the Holders to immediately, freely resell without restriction or filing with the SEC all Registrable Securities Act 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 provided amended to become effective until the end of such period) (in Sections 3.1 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 3.2other rights to purchase to acquire any Common Stock of the Company) or (b) any nominee designated by the Investors pursuant to Section 2(a) is a member of the Board, then (x) as promptly as reasonably practicable after the written request of Holders of greater than 50% of the Registrable Securities, the Company shall as promptly as practicable file with the SEC another shelf registration statement on Form S-1 (in each caseor, if the Company is eligible to use such form, Form S-3) relating to the extent applicable):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 Section 4(a)) for purposes of this Agreement.
(iii) If the Registration Statement becomes subject to review by the SEC, the Company will promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the SEC.
(iii) The Company will prepare and file with the Commission 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement the Registration Statement and the any prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be reasonably necessary to keep such registration statement the Registration Statement effective during the Effectiveness Period, and to will comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of Registration Statement during such time as all of such securities have been disposed of period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;Statement.
(iiiiv) furnish The Company will furnish, without charge, to each Selling Holder and each underwriter, if any, (A) a reasonable number of copies of the securities being sold Registration Statement (including any exhibits thereto other than exhibits incorporated by such Selling Holder such number of conformed copies of such registration statement and of reference), each amendment and supplement thereto as such Holder may request, (in each case including all exhibits), B) such number of copies of the prospectus contained included in such registration statement Registration Statement (including each preliminary prospectus and any summary 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 Securities Act, and any Issuer Free Writing Prospectus and (C) 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;Holder, but only during the Effectiveness Period.
(ivv) The Company will use its commercially reasonable efforts to register or qualify such the Registrable Securities covered by such registration statement under such other applicable securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter reasonably requests as may be necessary for the marketability of the securities being sold Registrable Securities (such request to be made by such Selling Holder shall reasonably request, the time the Registration Statement is deemed effective by the SEC) and take do any and all other action acts and things 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; provided, except however, 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 where it would not otherwise be required to qualify but for the requirements of this clause paragraph (ivv), (B) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general (C) consent to general 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 As promptly as practicable after becoming aware of such event, the Company will notify each Holder of 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event which comes to the Company’s attention if as a result of which, such event the prospectus included in such registration statement, as then in effect, includes the Registration Statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller a reasonable number of copies of Holder a supplement or amendment to or an amendment of such prospectus as may be necessary (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;, 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.
(xvii) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts The Company will comply, and continue to comply during the period that the Registration Statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the CommissionSEC 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 make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of cause the Company’s first full quarter after the effective date officers, directors, and employees to supply all information which such Holder or any Inspector may reasonably request for purposes of such registration statementdue 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 earnings statement agreement shall satisfy permit such Inspector to disclose records to the provisions Holder who has retained such Inspector. Each Holder agrees that it shall, upon learning that disclosure of Section 11(asuch 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 efforts to cause all the Registrable Securities Act and Rule 158 thereunder;covered by the Registration Statement to be listed or quoted on the principal securities market on which securities of the same class or series issued by the Company are then listed or traded.
(xii) The Company will provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times.
(xiii) The Company will cooperate with the sellers and Holders of Registrable Securities being offered pursuant to the managing underwriter Registration Statement to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities sold under any registration statement, Registrable Securities to be offered pursuant to the Registration Statement and enable such securities certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the managing underwriter or such sellers 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 as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;request.
(xiv) if requested The Company will take all other reasonable actions necessary to expedite and facilitate disposition by any Selling the Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement Registration Statement, including without limitation making its chief executive officer, president, chief financial officer and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver other appropriate officers and personnel available to the Company, at the Company’s expense, all copies, other than permanent file copies, then participate in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating marketing efforts with respect to such Registrable Securities. In the event the Company shall give such notice, 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionregistered underwritten public offering.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Allis Chalmers Energy Inc.), Investors Rights Agreement (Allis Chalmers Energy Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 4.1, 4.2 and 3.24.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.14.1, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.2, the expiration of 60 days after such registration statement becomes effectiveeffective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) 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 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);
(3viii) 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any 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 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;
(xxi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) 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;
(xvxvii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvixviii) 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix4.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4.6(a)(ix) and, if so directed by the 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 applicable 60-60 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix4.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Shareholder Agreements (Missouri & Northern Arkansas Railroad Co), Stockholders Agreement (Railamerica Inc /De)
Registration Procedures. If the Company files a registration statement pursuant to Section 2(a), 2(b) or 2(c), the following provisions shall apply:
(a) If and whenever At or before the Effective Time of the Exchange Offer or the Shelf Registration, as the case may be, the Company is required shall qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to 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 the registration of Exchange Securities as contemplated by Section 2(b) (the “Exchange Registration”), the Company shall:
(i) use its commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission a registration statement an Exchange Registration Statement on any form which may be utilized by the Company and which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commissionbe effected as contemplated by Section 2(b), and thereafter use its commercially reasonable efforts to cause such registration statement Exchange Registration Statement to remain become effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time on or prior to 330 days after 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessIssue Date;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement Exchange Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference included therein as may be necessary to keep effect and maintain the effectiveness of such registration statement effective Exchange Registration Statement for the periods and to comply with purposes contemplated in Section 2(b) hereof and as may be required by the provisions applicable rules and regulations of the Securities Act with respect Commission and the instructions applicable to the disposition of all securities covered by such registration statement until the earlier form of such time as all of such securities have been disposed of in accordance Exchange Registration Statement, and promptly provide each broker-dealer holding Exchange Securities with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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 included therein (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Actas then amended or supplemented), in conformity in all material respects with the requirements of the Securities ActAct and the rules and regulations of the Commission thereunder, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, broker-dealer reasonably may reasonably request in order prior to facilitate the public sale or other disposition expiration of the Registrable Securities owned by such seller;
(iv) Resale Period, for 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 in connection with resales 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;
(viiiii) in connection with an Underwritten Offering, obtain for promptly notify each Selling Holder and underwriter:
(1) an opinion broker-dealer that has requested or received copies 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 prospectus 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 attorneyconfirm such advice in writing, 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 when such information contained in any filing with the Commission Exchange Registration Statement 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus included therein or any prospectus amendment or supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement has been filed, and, with respect to the registration statement such Exchange Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2B) of any request by the Commission for amendments or supplements to the registration statement such Exchange Registration Statement or the prospectus or for additional information;
, (3C) of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement such Exchange Registration Statement or the initiation of any proceedings by any Person for that purpose;
, (4D) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable the Exchange Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat of any proceeding for such purpose;
, or (ixE) notify each Selling Holder, at any time during the Resale Period when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery thatthat such Exchange Registration Statement, prospectus, prospectus amendment or upon supplement or post-effective amendment does not conform in all material respects to the happening applicable requirements of any event as a result the Securities Act and the rules and regulations of which, the prospectus included in such registration statement, as then in effect, includes Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(iv) in the event that the Company would be required, andpursuant to Section 3(c)(iii)(E) above, at the request of to notify any Selling Holderbroker-dealers holding Exchange Securities, promptly use its commercially reasonable efforts to prepare and furnish as soon as practicable to each such seller broker-dealer a reasonable number of copies of a supplement to prospectus supplemented or an amendment of such prospectus as may be necessary amended so that, as thereafter delivered to the purchasers of such Registrable SecuritiesExchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading 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 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 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 the Company and which shall register all of the Registrable Securities (or in the case of a Shelf Registration Statement filed pursuant to Section 2(c)(iii), the Registrable Securities held by the Holders) 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 named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Company by the deadline for response set forth therein; provided, however, holders of Registrable Securities shall have at least 13 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an 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 every reasonably available at reasonable effort 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, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment or related Issuer Free Writing Prospectus, has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or related Issuer Free Writing Prospectus, or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose or (E) if at any time when a prospectus is required to be delivered under the Securities Act, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(viii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statementstatement or any post-effective amendment thereto at the earliest practicable date;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivix) if requested by any Selling Holders managing underwriter or any underwriterthe Majority Electing Holders, promptly incorporate in the registration statement or any prospectus, pursuant to a prospectus supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with by the rules and regulations of the FINRA; and
(xvi) 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing as such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 such Majority Electing Holders shall specify should be included (but not inconsistent with therein relating to the covenants and agreements terms 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 sale 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 including information with respect to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.princ
Appears in 2 contracts
Sources: Exchange and Registration Rights Agreement (Music123, Inc.), Exchange and Registration Rights Agreement (Music123, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect or cause the registration of any Registrable Purchased Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall will, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(i) prepare and and, in any event within 90 days after a request for registration is given to the Company, file with the Commission SEC a registration statement with respect to effect such registration, Purchased Securities and use its best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementas promptly as possible; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities is being effected pursuant to an incidental registration at any time anytime 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for so long as the requesting holders of the Purchased Securities shall request, but in no event longer than six (6) months, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iii) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Purchased Securities 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 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Purchased Securities owned by such seller;
(iv) use commercially reasonable its best efforts to register or qualify such Registrable Purchased 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 each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Purchased Securities owned by such Selling Holderseller, 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 where, but for the requirements of this clause (iv) ), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general consent to general service of process in any such jurisdiction;
(v) use commercially reasonable its 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 commercially reasonable efforts to cause such Registrable Purchased 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) seller or sellers thereof to consummate the disposition of such Registrable Purchased Securities;
(viivi) in connection with an Underwritten Offering, obtain for notify 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 seller 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 Purchased Securities covered 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in clause (ii) of this Section, upon discovery that, or upon of the happening of any event as a result of which, Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of any Selling Holdersuch seller, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment amended of such supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Purchased Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xivii) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits security holders, as promptly soon as practicable, an earnings statement covering the period of at least 12 months, reasonably practicable (but not more than 18 fifteen months, beginning with the first day of the Company’s first full quarter ) after the effective date of such the registration statement, which an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 the rules and regulations promulgated thereunder;
(xiiviii) cooperate with use its best efforts to list such Purchased Securities on any securities exchange or listing agency on which the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law)Common Stock is then listed or quoted, if necessary such Purchased Securities are not already so listed or appropriate, representing securities sold quoted and if such listing or quotation is then permitted under any registration statementthe rules of such exchange or agency, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s provide a transfer agent prior to and registrar for such Purchased Securities covered by such registration statement not later than the effectiveness effective date of such registration statement statement; enter into such customary agreements (including an underwriting agreement in customary form) and take such other actions as sellers of a supply majority of such certificates as necessary Purchased Securities or appropriate;
(xiii) have appropriate officers the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable such Purchased Securities;
(xivix) if make available for inspection by any seller of such Purchased Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees to supply all information reasonably requested by any Selling Holders or any such seller, underwriter, promptly incorporate attorney, accountant or agent in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made connection with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(x) the Company may defer the demand for registration under Section 9(a) hereof, suspend the use of a registration statement filed under Section 9(a) and (b) Without limiting any hereof and already effective, or not cause a registration statement filed under Section 9(a) or (b) hereof to become effective, for a period of the foregoing, up to ninety (90) days in the 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 majority of the Company contained herein) by an issuer Board of common stock Directors determines that such deferral is 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 best interests of the Registrable Securities being sold (unless, Company. Such a deferral may only be used once 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 theretoone year period.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall shall, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(i) 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 of an Initiating Holder of Registrable Securities or in any event as soon thereafter as possible) file with the Commission a the requisite registration statement to effect such registration, cause registration (including such registration statement to become effective at audited financial statements as may be required by the earliest possible date permitted under the rules and regulations of the Commission, Securities Act) and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreementeffective; provided, however, 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 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (ix) in the case of a Demand Registration registration pursuant to Section 3.1, the expiration of 60 120 days after such registration statement becomes effective, or (iiy) in the case of a Piggyback Registration registration pursuant to Section 3.2, the expiration of 60 90 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder seller of Registrable Securities covered by such registration statement and each underwriter, if any, of the securities being sold by such Selling Holder seller such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of 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 documents, as such Selling Holder 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 commercially reasonable its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky or similar laws of such jurisdictions as any Selling Holder seller thereof and any underwriter of the securities being sold by such Selling Holder seller 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 or advisable to enable such Selling Holder seller and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Holderseller, 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 subdivision (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(v) use commercially reasonable its 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 commercially reasonable efforts to cause such 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 Selling Holder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viivi) in connection with an Underwritten Offering, obtain for furnish to 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 a signed counterpart, addressed to such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder seller and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Aps Healthcare Inc), Warrantholders Rights Agreement (Aps Healthcare Inc)
Registration Procedures. (a) If and whenever the Company is Whenever required under this Agreement to use its commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Securities, the Company shall will use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall, as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably possible:
(ia) prepare Prepare and file with the Commission a registration statement Registration Statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement Registration Statement to become and remain effective pursuant to until the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessdistribution thereof has been completed;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect Furnish to the disposition of all securities covered by Holders such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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 numbers of copies of the prospectus contained in such registration statement (a prospectus, including each a 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, they may reasonably request in order to facilitate the public sale or other disposition of the such Registrable Securities owned by such sellerthem;
(ivc) use commercially reasonable efforts to register or qualify such Notify the selling Holders of 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 promptly (but 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
event within two (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 statementdays);
(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 confirm 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 notice 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 writing (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 when a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement has been filed, and, with respect to the registration statement a Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2ii) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement a Registration Statement or the initiation of any proceedings order preventing or suspending the use of any preliminary prospectus, (iii) if at any time when a prospectus is required by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict the Securities Act to be delivered in connection with the information sales of Registrable Securities, the Company becomes aware that the representations and warranties of the Company contained in the registration statement; and
any agreement (5including, without limitation, any underwriting agreement) contemplated in Section 8(g) below cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities for offer or sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery thatjurisdiction, or upon (v) if the Company becomes aware of the happening of any event as a result of which, the prospectus included that makes any statement made in such registration statementRegistration Statement or related prospectus or document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, as then prospectus or documents so that, in effectthe case of such Registration Statement, includes an it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, andand that in the case of the prospectus, at 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 request statements therein, in light of the circumstances under which they were made, not misleading;
(d) Upon the occurrence of any Selling Holderevent contemplated by Section 8(c) above, as promptly as practicable, prepare and furnish a supplement or post-effective amendment to such seller a reasonable number of copies of the Registration Statement or a supplement to the related prospectus or an amendment of such prospectus as may any document incorporated or deemed to be necessary incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(xe) 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 efforts to cause 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 under such other securities or “Blue Sky” laws of such jurisdictions as shall be reasonably appropriate for the distribution of the Registrable Securities covered by the Registration Statement; provided that the Company shall not be required in connection therewith or as a condition thereto, to qualify to do business or to file a general consent to service of process in any such states or jurisdictions; and provided, further that (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 such expenses shall be payable by the Holders of such Registrable Securities pro rata to the extent required by any jurisdiction;
(g) In the case of any underwritten offering, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all other actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or disposition of the Registrable Securities, and in such connection, (i) make such representations and warranties to the underwriters, with respect to the business of the Company and its subsidiaries, and the Registration Statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested, (ii) obtain opinions of counsel to the Company and updates thereof (which opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters), addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings, (iii) obtain “cold comfort” letters and updates thereof from the independent public certified accountants of the Company (and, if necessary, any other independent certified public accounts of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings and (iv) if any underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the Holders of Registrable Securities than those set forth in Section 12 hereof (or such other provisions and procedures acceptable to Holders of a majority of the Registrable Securities covered by such Registration Statement and the managing underwriters or agents). The above actions shall be taken at each closing under such underwriting agreement, or as and to the extent required thereunder;
(h) Make available for inspection by any selling Holder of Registrable Securities, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by any such selling Holder or any such underwriter, all pertinent financial and other records and pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such selling Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement; and
(i) Use every reasonable effort to obtain prevent the withdrawal issuance of any stop order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary Registration Statement or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by order preventing or suspending the use of any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; preliminary prospectus and
(xvi) 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 (orsuch order is issued, if no underwriter, to obtain the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver to the Company, lifting thereof 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionearliest reasonable time.
Appears in 2 contracts
Sources: Investor Rights Agreement (Research Pharmaceutical Services, Inc.), Investor Rights Agreement (Research Pharmaceutical Services, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act or an Underwritten Offering as provided in Sections 3.1 Section 4.1, Section 4.2 and 3.2Section 4.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will (A) furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents (B) provide each such Selling Holder and their counsel the opportunity to object to any information pertaining to such Selling Holder or its plan of distribution that is contained in the registration statement (it being understood that each Selling Holder and counsel to such Selling Holder will be subject conduct their review and provide any comments promptly) and (C) make any changes reasonably requested by such Selling Holder or their counsel with respect to the review of such counsel, and such review to be conducted with reasonable promptnessinformation;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements and “stickers” to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.14.1, the expiration of 60 90 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.2, the expiration of 60 90 days after such registration statement becomes effectiveeffective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) 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 exhibitsexhibits 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 sellerSelling 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 commercially 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 NASDAQ or the New York Stock Exchange or the Nasdaq Stock MarketExchange;
(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. 72AU 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 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission or any other Governmental Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company Securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal,” Block Trade Offering or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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. 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 Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable SecuritiesSelling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.share
Appears in 2 contracts
Sources: Shareholders Agreement (New Fortress Energy LLC), Shareholder Agreement (New Fortress Energy LLC)
Registration Procedures. (a) If and whenever Whenever the Company is required Holders of Holders' Securities have requested that any Holders' Securities be registered pursuant to this Agreement, CB&I will use commercially its reasonable best efforts to effect the registration and sale of any Registrable such Holders' Securities under in accordance with the Securities Act intended method of disposition thereof and, pursuant thereto, CB&I will as provided in Sections 3.1 and 3.2, the Company shall expeditiously as promptly as practicable (in each case, to the extent applicable):possible:
(ia) prepare and file with the Commission a registration statement with respect to effect such registration, Holders' Securities and use its reasonable best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further (provided that before filing such a registration statement or prospectus, or any amendments or supplements thereto, the Company CB&I will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject filed to the review counsel or counsels for the Selling Holders of the Holders' Securities covered by such counsel, and such review to be conducted with reasonable promptnessregistration statement);
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus prospectus(es) used in connection therewith and any Exchange Act reports incorporated by reference therein 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 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 time equal to the period the Holder refrains from selling any Holders' Securities included in such registration at the request of CB&I or an underwriter), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers Selling Holders thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) 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), Holders' Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus contained prospectus(es) 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 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 Holders' Securities owned by such sellerSelling Holder;
(ivd) use commercially its reasonable best efforts to register or qualify such Registrable Holders' Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder reasonably requests and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Holders' Securities owned by such Selling Holder, except Holder (provided that the Company shall CB&I will not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements this subparagraph, (ii) consent to general service of this clause process in any such jurisdiction, or (iviii) 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixe) notify each Selling HolderHolder of such Holders' Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Holdersuch seller, promptly CB&I will prepare and furnish a supplement or amendment 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 Registrable Holders' Securities, such prospectus shall will not include an contain any untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleading;
(xf) make every reasonable effort cause all such Holders' Securities to obtain be listed on each securities exchange on which similar securities issued by CB&I are then listed or if no such securities are then listed, such securities exchange as the withdrawal Selling Holders of any order suspending a majority of the effectiveness Holders' Securities included in such registration may request;
(g) provide a transfer agent and registrar for all such Holders' Securities not later than the effective date of such registration statement;
(xih) otherwise use commercially reasonable efforts to comply with enter into such customary agreements (including underwriting agreements in customary form) and take all applicable rules and regulations such other customary actions as the Selling Holders of a majority of the CommissionHolders' Securities being sold or the underwriters, and make available if any, reasonably request in order to Selling expedite or facilitate the disposition of such Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months' Securities (including, but not more than 18 monthslimited to, beginning with the first day effecting a stock split or a combination of the Company’s first full quarter after the effective date shares);
(i) make available for inspection by any Selling Holder of Holders' Securities, any underwriter participating in any disposition pursuant to such registration statement, which earnings statement and any attorney, accountant or other agent retained by any such Selling Holder or underwriter, all financial and other records, pertinent corporate documents and properties of CB&I, and cause CB&I's officers, directors, employees and independent accountants to supply all information reasonably requested by any such Selling Holder, underwriter, attorney, accountant or agent in connection with such registration statement; provided, however, that any records, information or documents that are furnished by CB&I and that are non-public shall satisfy be used only in connection with such registration and shall be kept strictly confidential by any Selling Holder of Holders' Securities except to the provisions extent disclosure of Section 11(a) such records, information or documents is required by written order of the Securities Act and Rule 158 thereundera court or other governmental authority having jurisdiction;
(xiij) cooperate with advise each Selling Holder of such Holders' Securities, promptly after it shall receive notice or obtain knowledge thereof, of the sellers and issuance of any stop order by the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to Commission suspending the effectiveness of such registration statement a supply or the initiation or threatening of any proceeding for such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare purpose and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise promptly use its reasonable best efforts to cooperate as reasonably requested by prevent the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance issuance of any due diligence investigation by any underwriter that is required stop order or to obtain its withdrawal if such stop order should be undertaken in accordance with the rules and regulations of the FINRAissued; and
(xvik) otherwise use commercially reasonable efforts furnish on the date or dates provided for in the underwriting agreement: (i) an opinion of counsel, addressed to comply the underwriters, covering such matters as such counsel and underwriters may reasonably agree upon, including such matters as are customarily furnished in connection with all applicable rules an underwritten offering, and regulations (ii) a letter or letters from the independent certified public accountants of CB&I addressed to the Commission underwriters, covering such matters as such accountants and all reporting requirements under underwriters may reasonably agree upon, in which letter(s) such accountants shall state, without limiting the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 generality of the foregoing, that they are independent certified public accountants within the meaning of the Securities Act and that in their opinion the financial statements and other financial data of CB&I included in the event that the offering of Registrable Securities is to be made by or through an underwriterregistration statement, the Company shall enter into an underwriting agreement with a managing underwriter prospectus(es), or underwriters containing representationsany amendment or supplement thereto, warranties, indemnities and agreements customarily included (but not inconsistent comply in all material respects with the covenants and agreements applicable accounting requirements 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 theretoAct.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Purchase Agreement (Chicago Bridge & Iron Co N V), Purchase Agreement (Wedge Group Inc)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 2 and 3.23, the Company shall as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) prepare and as soon thereafter as possible file with the Commission a SEC the requisite 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 Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementbecome effective; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further provided that before filing such registration statement or any amendments or supplements thereto, the Company will (i) shall furnish to the Selling Stockholders and their counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and (ii) may not file any such review registration statement or amendment or supplement to be conducted which any such Selling Stockholder shall have reasonably objected on the grounds that, in the opinion of counsel to such Selling Stockholder, such registration statement or amendment or supplement does not comply in all material respects with reasonable promptnessthe requirements of the Securities Act;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement continuously effective for a period of either (i) not less than 120 days (subject 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)) or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of 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 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 until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold covered by such Selling Holder 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 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 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;
(ivd) use commercially reasonable its best efforts to register or qualify such Registrable Securities securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions in the United States as any Selling Holder and any underwriter of the securities being sold by such Selling Holder each seller thereof shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect, and to take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions in the United States of the Registrable Securities securities owned by such Selling Holderseller, except that for 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 wherein where it would not otherwise be required to qualify but for the requirements of this clause Section 4(d), (ivii) be obligated consent to be so qualifiedgeneral service of process in any such jurisdiction, to (iii) subject itself to taxation in any such jurisdiction or (iv) conform its capitalization or the composition of its assets at the time to file a general consent to service the securities or blue sky laws of process in any such jurisdiction;
(ve) use commercially reasonable its best efforts to cause such Registrable Securities to be listed on each all 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 Governmental Authorities as may be necessary by virtue of the business and operations of the Company to enable the Selling Holder(s) thereof sellers to consummate the disposition of such Registrable Securitiesthereof;
(viif) in connection with an Underwritten Offering, obtain for furnish to each Selling Holder Stockholder a signed counterpart, addressed to such Selling Stockholder (and underwriterthe underwriters, if any), of:
(1i) an opinion of counsel for the Company, covering dated the matters customarily covered 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 opinions requested in underwritten offerings form and such other matters as may be substance reasonably requested by satisfactory to such Selling Holder and underwriters, Stockholder; and
(2ii) a “"comfort” letter " letter, dated the effective date of such registration statement (orand, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), in the case of any form and substance reasonably satisfactory to such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72Selling Stockholder, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s '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, if necessaryin the case of the accountants' letter, any other independent registered 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 accountant offerings of securities;
(g) furnish to each such Selling Stockholder a copy of any subsidiary amendment or supplement to such registration statement or prospectus (other than any amendment or supplement in the form of a filing which the Company or any business acquired by the Company from which financial statements and financial data are, or are is required to be, included in make pursuant to the registration statementExchange Act);
(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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixh) notify each Selling HolderStockholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus 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 misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of any such Selling Holder, Stockholder promptly prepare and furnish to such seller Selling Stockholder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement covering the a period of at least 12 months, but not more than 18 months, twelve months beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiij) cooperate with in the sellers conduct of such due diligence relating to the Company as the Selling Stockholders and the managing or lead underwriter to facilitate or underwriters (including their counsel and other authorized representatives) may reasonably request and is customary for such offering, including by making available for inspection the timely preparation Company's financial and delivery of certificates (which other records and pertinent corporate and other documents as shall not bear any restrictive legends unless required under applicable law), if be reasonably necessary or appropriate, representing securities sold under any registration statement, and appropriate to enable such securities persons to be in such denominations conduct their due diligence and registered in such names as the managing underwriter or such sellers may request and keep available and make available to by causing the Company’s transfer agent prior 's officers and personnel to the effectiveness of supply information and respond to all inquiries reasonably requested by such registration statement a supply of such certificates as necessary or appropriatepersons in connection with their due diligence;
(xiiik) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and provide customary assistance to the underwriters in their selling efforts and presentations to prospective investors, including by making available the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant Company's officers and personnel for presentations to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made meetings with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAprospective investors; and
(xvil) otherwise use commercially reasonable its best efforts to comply with list, or have approved for trading, all applicable rules and regulations shares of Common Stock covered by such registration statement on any national securities exchange or automated interdealer quotations system on which the Commission and all reporting requirements under Common Stock is then listed or approved for trading not later than the rules and regulations effective date of the Exchange Actsuch registration statement. The Company may require each Each Selling Holder and each underwriter, if any, to Stockholder shall furnish the Company in writing for inclusion in the registration statement such information regarding each such Selling Holder or underwriter Stockholder and the distribution of such Registrable Securities being sold 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 the 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 issuersrequest. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder Stockholder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix4(h), such Selling Holder Stockholder shall forthwith discontinue such Selling Holder’s Stockholder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto to such Registrable Securities until such Selling Holder’s Stockholder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4(h) and, if so directed by the Company, such Selling Stockholder shall use its reasonable efforts to deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, copies then in such Selling Holder’s possession Stockholder's possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give any such notice, any the applicable 60-day time period mentioned in Section 4(b) during which such a registration statement must is to 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 a such notice regarding the happening of an event of the kind described in pursuant to Section 3.6(a)(ix) 4(h), to and including the date when all such each Selling Holders Stockholder shall receive such a have received the copies of the supplemented or amended prospectus and such prospectus shall have been filed with the Commissioncontemplated by Section 4(h).
Appears in 2 contracts
Sources: Registration Rights Agreement (Atlas America Inc), Registration Rights Agreement (Atlas America Inc)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 6.1, 6.2 and 3.2, 6.3 the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC 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 Commission, SEC and thereafter use commercially reasonable best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (ix) in the case of a Demand Registration pursuant to Section 3.16.1, the expiration of 60 days after such registration statement becomes effective, or (iiy) in the case of a Piggyback Registration pursuant to Section 3.26.2, the expiration of 60 days after such registration statement becomes effectiveeffective or (z) in the case of a Shelf Registration pursuant to Section 6.3, the Shelf Registration Effectiveness Period;
(iii) 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 sellerSelling Holder;
(iv) use commercially 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, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to service of process in any such jurisdiction;
(v) use commercially 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 NASDAQ Stock Market;
(vi) use commercially 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:
(1A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2B) 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. 72AU 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 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);
(3viii) promptly make available for inspection by any sellerSelling 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 seller Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them 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 statementstatement 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 SEC confidential treatment of such information contained in any filing with the Commission 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 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) any request by the Commission SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) the issuance by the Commission SEC or any of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4D) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding Proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any Selling Holder, promptly prepare and furnish to such seller 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 a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xxi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holders, as promptly as practicable, an earnings statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers any Selling Holder and any underwriters and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers 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 as certificates, if necessary or appropriate;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) 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 Commission SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 SecuritiesSelling 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.
(cb) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix6.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix6.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreement (Moelis & Co)
Registration Procedures. (a) If and whenever the Company is required to effect or use commercially its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall as promptly as practicable will promptly:
(a) prepare and, in each case, any event within 45 days after the end of the period within which a request for registration may be given to the extent applicable):
(i) prepare and Company, file with the Commission SEC a registration statement with respect to effect such registration, Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations within 90 days of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessinitial filing;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement (including Exchange Act documents incorporated by reference into the registration statement) and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period not in excess of 90 days (or such longer period not to exceed two years as may be requested by the Holders in the event of a shelf registration statement) and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, that before filing a registration statement or prospectus, or any amendments or supplements thereto in accordance with Sections 4.3(a) or (i) in b), the case of a Demand Registration Company will furnish to counsel selected pursuant to Section 3.14.8 hereof copies of all documents proposed to be filed, which documents will be subject to the expiration review of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivecounsel;
(iiic) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Registrable Securities such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibitsexhibits filed therewith, including any documents incorporated by reference), such number of copies of the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(ivd) use commercially its 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 in such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holderseller, 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 where, but for the requirements of this clause subsection (iv) d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially its 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 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) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify 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 seller 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 Registrable Securities covered 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, Company’s becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of any Selling Holdersuch seller, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to an amended or an amendment of such supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xig) otherwise use commercially its reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits security holders, as promptly soon as practicable, an earnings statement covering the period of at least 12 months, reasonably practicable (but not more than 18 months, beginning with the first day of the Company’s first full quarter ) after the effective date of such the registration statement, which an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiih) (i) use its reasonable best efforts to list such Registrable Securities on any securities exchange on which the Common Stock is then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange; and (ii) use its best efforts to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including an underwriting agreement in customary form), which may include indemnification provisions in favor of underwriters and other Persons in addition to, or in substitution for the provisions of Section 4.5 hereof, and take such other actions as sellers of a majority of shares of such Registrable Securities or the underwriters, if any, reasonably requested in order to expedite or facilitate the disposition of such Registrable Securities;
(j) in the case of an underwritten registration, obtain a “cold comfort” letter or letters from the Company’s independent public accounts in customary form and covering matters of the type customarily covered by “cold comfort” letters as the seller or sellers of a majority of shares of such Registrable Securities shall reasonably request;
(k) make available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such underwriter and by counsel selected pursuant to Section 4.8 hereof, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) notify counsel (selected pursuant to Section 4.8 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 SEC, (iii) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(m) make reasonable 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;
(n) if requested by the managing underwriter or agent or any Holder of Registrable Securities covered by the registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such Holder reasonably requests to be included therein, including, with respect to the number of Registrable Securities being sold by such Holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(o) cooperate with the sellers 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 (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities to be sold under any the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or agent, if any, or such sellers 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 as necessary or appropriaterequest;
(xiiip) have appropriate officers 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 prepare in customary form and make presentations at any “road shows” in form, substance and before analysts scope reasonably satisfactory to such Holders, underwriters or agents and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securitiestheir counsel;
(xivq) if requested by any Selling Holders cooperate with each seller of Registrable Securities and each underwriter or any underwriter, promptly incorporate agent participating in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, disposition of such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate Securities and assist their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. NASD;
(“FINRA”r) and in use its reasonable best efforts to make available the performance executive officers of any due diligence investigation by any underwriter that is required the Company to be undertaken in accordance participate with the rules Holders of Registrable Securities and regulations any underwriters in any “road shows” or other selling efforts that may be reasonably requested by the underwriters in connection with the methods of distribution for the FINRARegistrable Securities; and
(xvis) otherwise use commercially reasonable efforts if at any time a shelf registration statement requested to comply with all applicable rules and regulations be used by the Holders to dispose of the Commission and all reporting requirements under Registrable Securities ceases to be effective before the rules and regulations end of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company two year effective period for shelf registration statements set forth in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event that the offering of Registrable Securities is to be made by or through an underwriterSection 4.3(b), the Company shall enter into use its reasonable best efforts to file and cause to become effective a new shelf registration statement to remain effective for a two year period plus 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 additional period equal to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 applicable 60-day period during which such a registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionwas not effective.
Appears in 2 contracts
Sources: Securityholders Agreement (Goldleaf Financial Solutions Inc.), Securityholders Agreement (Lightyear Fund, L.P.)
Registration Procedures. (a) If and whenever In connection with the registration ----------------------- obligations of the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 3 and 3.24, the Company shall as promptly as practicable (in each case, to the extent applicable):shall:
(ia) prepare and file with the Commission SEC a registration statement Registration Statement with respect to effect such registrationRegistrable Securities on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, cause such registration statement to become effective at and which form shall be available for the earliest possible date permitted under the rules and regulations sale of the CommissionRegistrable Securities in accordance with the intended methods of distribution thereof, and thereafter use commercially reasonable best efforts to cause such registration statement Registration Statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnesseffective;
(iib) prepare and file with the Commission such SEC amendments (including and post-effective amendments) amendments to such Registration Statement and such amendments and supplements to such registration statement and the prospectus Prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder necessary to keep such registration statement Registration Statement effective (i) in the case of an Underwritten Offering, until each underwriter has completed the distribution of all securities purchased by it, and (ii) in the case of any other registration, until the Registrable Securities covered thereby cease to be Registrable Securities, and cause the Prospectus as so amended and supplemented to be filed pursuant to Rule 424 under the Securities Act, and otherwise use reasonable best efforts to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement until the earlier of such time as all of such securities have been disposed of is specified in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or clause (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in above, as the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivemay be;
(iiic) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder Registrable Securities such number of conformed copies of such registration statement Registration Statement and of each amendment and post- effective amendment thereto, any Prospectus or Prospectus 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 sellerHolder (the Company hereby consenting to the use (subject to the limitations set forth in Section 8(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(ivd) use commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement 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 each Holder shall reasonably request, and take to do any and all other action acts and things 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 be required for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not where, but for the requirements of this clause (iv) Section 7(d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable efforts to cause such Registrable Securities to be listed on notify 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 Holder of any 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling HolderRegistration Statement, at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities ActAct within the applicable period referred to in Section 7(b), upon discovery that, or upon that the happening of any event as a result of which, Company has become aware that the prospectus Prospectus included in such registration statementRegistration Statement, as then in effect, includes an untrue statement of a the material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading 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, at the request of any Selling Holder, promptly and prepare and furnish to such seller Holder, as soon as ------------------- reasonably practicable, a reasonable number of copies of a an amendment to such Registration Statement or supplement to or an amendment of such prospectus related Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(xf) make every reasonable effort notify each Holder of Registrable Securities covered by such Registration Statement at any time,
(i) when the Prospectus or any Prospectus supplement or post- effective amendment has been filed and, with respect to obtain the withdrawal Registration Statement or any post-effective amendment, when the Registration Statement or such post-effective amendment has become effective;
(ii) of the issuance by the SEC of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation of any proceedings for such registration statementpurposes; and
(iii) of the receipt of the Company of any written notification of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose;
(xig) 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, its stockholders an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Act, provided that the Company shall be deemed to have complied with this Section 7(g) if it has complied with Rule 158 thereunderunder the Securities Act;
(xiih) use reasonable best efforts (i) to cause all Conversion Shares and Warrant Shares covered by such Registration Statement to be listed on any securities exchange or automated quotation system on which the Common Stock is then listed, if such Conversion Shares and Warrant Shares are not already so listed and if such listing is then permitted under the rules of such exchange or automated quotation system, (ii) to provide a transfer agent and registrar for Registrable Securities covered by such Registration Statement no later than the effective date of such Registration Statement and (iii) prepare and file with the 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;
(i) if the registration involves an Underwritten Offering, enter into a customary underwriting agreement and in connection therewith:
(i) make such representations and warranties to the underwriters in form, substance and scope as are customarily made by issuers to underwriters in comparable Underwritten Offerings;
(ii) use reasonable best efforts to obtain opinions of counsel to the Company (in form, scope and substance reasonably satisfactory to the managing underwriters), addressed to the underwriters, and covering the matters customarily covered in opinions requested in comparable Underwritten Offerings;
(iii) use reasonable best efforts to obtain "cold comfort" letters and bring-downs thereof from the Company's independent certified public accountants addressed to the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by independent accountants in connection with Underwritten Offerings; and
(iv) deliver such documents and certificates as may be reasonably requested by the managing underwriters to evidence compliance with any customary conditions contained in the underwriting agreement;
(j) cooperate with the sellers Holders of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing the securities to be sold under any registration statementsuch Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters or agents, if any, or such sellers 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 as necessary or appropriaterequest;
(xiiik) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as if reasonably requested by the Selling Holders managing underwriter or underwriters or a Holder of Registrable Securities being sold in connection with an Underwritten Offering, incorporate in a Prospectus supplement or post- effective amendment to the Registration Statement such information as the managing underwriters and the underwriters in the offering, marketing or selling 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;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 the principal amount 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 (unlessto such underwriters, in the Company’s sole discretion, purchase price being paid therefor by such Registrable Securities are to be issued in uncertificated form pursuant to underwriters and any other terms of the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar Underwritten Offering of the Registrable Securities to release any stop transfer order with respect thereto.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;
(cl) Each Selling if reasonably requested by the managing underwriter or underwriters or a Holder agrees that upon receipt of any notice from Registrable Securities being sold in an Underwritten Offering, cause appropriate representatives of the Company of to participate in any "road shows" or similar marketing activities;
(m) in the happening of any event of the kind described in Section 3.6(a)(ix)issuance of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement, such Selling Holder shall forthwith discontinue such Selling Holder’s disposition or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Registrable Securities pursuant included in the Registration Statement for sale in any jurisdiction, use reasonable best efforts promptly to obtain the applicable registration statement and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 withdrawal of such notice relating to such Registrable Securities. In stop order or other order, and the event period for which the Company Registration Statement shall give such notice, any applicable 60-day period during which such registration statement must remain be kept effective pursuant to this Agreement shall be extended by a number of days equal to the number of days during between the period from issuance and 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 of giving of a notice regarding Securities Act, such Registration Statement shall register the happening offering of an event indeterminate number of shares of Common Stock which may become issuable pursuant to the antidilution provisions of the kind described in Section 3.6(a)(ix) to Preferred Shares and the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionWarrants.
Appears in 2 contracts
Sources: Registration Rights Agreement (Itc Holding Co Inc), Registration Rights Agreement (Itc Deltacom Inc)
Registration Procedures. In the case of each Registration effected by ----------------------- the Company pursuant to Section 2, the Company will keep each Holder participating therein advised in writing as to the initiation of each Registration and as to the completion thereof. At its expense (except as otherwise provided in Section 2.4 above) the Company will use its best efforts to:
(a) If and whenever keep such registration, qualification or compliance pursuant to Sections 2.1, 2.2 or 2.3 effective for a period of 180 days or until the Company is required to use commercially reasonable efforts to effect Holder or Holders have completed the distribution described in the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2statement relating thereto, the Company shall as promptly as practicable (in each case, to the extent applicable):whichever first occurs;
(ib) furnish such number of prospectuses and other documents incident thereto as a Holder from time to time may reasonably request;
(c) prepare and file with the Commission 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein with such registration statement 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 securities covered by such registration statement until within the earlier of such time as all of such securities have been disposed of period referred to in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective2.5(a);
(iiid) furnish to notify 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto covered by such registration statement is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any 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 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;
(x) make every reasonable effort to obtain misleading in the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations light of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAcircumstances then existing; and
(xvie) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of furnish, at the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition requesting registration of Registrable Securities pursuant to this Section 2, on the applicable date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated such date, of the 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 to the Holders whose Registrable Securities are included in such registration statement and prospectus relating thereto until (ii) if such Selling Holder’s receipt securities are being sold through underwriters, a letter dated such date, from the independent certified public accountants of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionunderwriters.
Appears in 2 contracts
Sources: Investor Rights Agreement (Network Access Solutions Corp), Investor Rights Agreement (Network Access Solutions Corp)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 4.1, 4.2 and 3.24.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which that are not Registrable Securities at any time prior to the effective date of the registration statement relating theretoto such securities; provided, further further, that before filing such registration statement or any amendments or supplements thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which that are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of and comment by such counsel, counsel (it being understood that counsel to the Selling Holders will conduct its review and such review to be conducted with reasonable promptnessprovide any comments promptly);
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.14.1, the expiration of 60 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.24.2, the expiration of 60 days after such registration statement becomes effectiveeffective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) 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, 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 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. 72AU 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);
(3viii) 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 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;
(viiiix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixx) notify each Selling Holder, 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, and, at the request of any 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 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;
(xxi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Common Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) 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;
(xvxvii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvixviii) 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 shares in underwriting agreements with respect to offerings of common stock shares for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix4.5(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix4.5(a)(ix) and, if so directed by the 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 applicable 60-60 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix4.5(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Shareholder Agreement (SeaCube Container Leasing Ltd.), Shareholder Agreement (SeaCube Container Leasing Ltd.)
Registration Procedures. (a) If and whenever this Agreement contemplates ----------------------- that the Company is required to use commercially reasonable efforts to will effect the registration under the Act of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2shares held by Holder, the Company shall as promptly as practicable (in each case, to the extent applicable):shall:
(i) 3.1 prepare and file with the Securities and Exchange Commission (the "SEC") a registration statement on the appropriate form with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules shares and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant as provided herein, provided that before filing any amendments or supplements to a registration statement or prospectus, including documents incorporated by reference after the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date initial filing of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments theretostatement, the Company will furnish to Holder and the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) underwriters, if any, copies of all such documents proposed to be filedfiled at least five business days prior thereto, which documents will be subject to the reasonable review of such counselHolder and underwriters, and the Company will not file an amendment to a registration statement or prospectus or any supplement thereto (including such review documents incorporated by reference) to be conducted with reasonable promptnesswhich Holder or the underwriters, if any, shall reasonably object;
(ii) 3.2 prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein to take such other action 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case completion of a Demand Registration pursuant to Section 3.1, the expiration distribution of 60 days after such registration statement becomes effectiveshares so registered, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies 120 day period following immediately the effective date of such registration statement (at which time unsold shares may be deregistered), and otherwise comply with applicable provisions of the Act and the rules and regulations promulgated under the Act;
3.3 furnish to Holder and its counsel, and to each amendment and supplement thereto (in each case including all exhibits)underwriter of the shares to be sold by Holder, without charge, such number of copies of the prospectus contained in such registration statement (including each one or more preliminary prospectuses, any supplements thereto and a final prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, supplements thereto in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as Holder or such Selling Holder and underwriter, if any, underwriter may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellershares;
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 registration statement, any event known to the Company occurs as a result of which the prospectus would include an untrue statement of material fact or omit to state any material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the related prospectus to comply with the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the respective rules and regulations thereunder, to notify Holder promptly and to prepare and file with the SEC an amendment or supplement, whether by filing such documents pursuant to the Act or the Exchange Act as may be necessary to correct such untrue statement or omission or to make any registration statement or the related prospectus comply with such requirements and to furnish to Holder and its counsel such amendment or supplement to such registration statement or prospectus;
3.5 timely to file with the SEC (i) any amendment or supplement to any registration statement or to any related prospectus that is required by the Act or the Exchange Act or requested by the SEC, and (ii) all documents (and any amendments to previously filed documents) required to be filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act;
3.6 within five days of filing with the SEC of (i) any amendment or supplement to any registration statement, (ii) any amendment or supplement to the related prospectus, or (iii) any document incorporated by reference in any of the foregoing or any amendment of or supplement to any such incorporated document, to furnish a copy thereof to Holder;
3.7 to advise Holder and its counsel promptly (i) when any post- effective amendment to any registration statement becomes effective and when any further amendment of or supplement to the prospectus shall be filed with the SEC, (ii) of any request or proposed request by the SEC for an amendment or supplement to any registration statement, to the related prospectus, to any document incorporated by reference in any of the foregoing or for any additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of any registration statement or any order directed to the related prospectus or any document incorporated therein by reference or the initiation or threat of any stop order proceeding or of any challenge to the accuracy or adequacy of any document incorporated by reference in such prospectus, (iv) of receipt by the Company of any notification with respect to the suspension of the qualification of the shares for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose, and (v) of the happening of any event which makes untrue any statement of a material fact made in any registration statement or the related prospectus as amended or supplemented or which requires the making of a change in such registration statement or such prospectus as amended or supplemented in order to make any material statement therein not misleading;
3.8 on or before the date a registration statement is declared effective, use commercially reasonable its best efforts to register or qualify such Registrable Securities the shares covered by such registration statement under such other the 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, considering the nature and take any size of the offering, and do such other action which acts and things as may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the public sale or other disposition in each such jurisdictions jurisdiction of the Registrable Securities owned by such Selling Holdershares; provided, except however, that the Company shall not for any such purpose be required obligated to qualify generally to do business as a foreign corporation in to do business under the laws of any jurisdiction wherein in which it would has not but for the requirements of this clause (iv) be obligated to be so been qualified, to subject itself to taxation in any such jurisdiction or to file a any general consent to service of process in any such jurisdictionprocess;
(v) 3.9 use commercially reasonable its best efforts to cause such Registrable Securities all shares sold pursuant to any registration statement to be listed on each national securities exchange exchange, if any, on which similar securities issued by the Company such shares are then listed andlisted;
3.10 enter into customary agreements (including, if no such securities are so listedapplicable, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the Nasdaq Stock Market;
(vian underwriting agreement in customary form) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by and take such other governmental agencies actions as are reasonably required in order to expedite or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate facilitate 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 3.11 make 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 sellerHolder, any underwriter participating in any disposition pursuant to any the registration statement, and any attorney, accountant or other agent or representative retained by any such seller Holder or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”), ") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration statement; provided. Records and other information which the Company determines, howeverin good faith, that, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records Records, in the opinion of counsel reasonably acceptable to the Company, is necessary to avoid or correct a misstatement or omission in the registration statement statement, or (ii) the release of such Records 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 the Company's expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify 3.12 use its best efforts to obtain a "cold comfort" letter from the Company's independent public accountants in writing each Selling Holder customary form and the underwriters, if any, covering such matters of the following events:
(1) type customarily covered by "cold comfort" letters as Holder, or the filing of the registration statementmanaging underwriter, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effectivereasonably requests;
(2) any request by 3.13 use its best efforts to obtain an opinion or opinions from counsel for the Commission for amendments or supplements to the registration statement or the prospectus or for additional informationCompany in customary form;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) 3.14 make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such the registration statement;statement at the earliest possible moment; and
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) 3.15 cooperate with the sellers Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities to be sold under any the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriterunderwriters, if any, to furnish the Company in writing such information regarding each Selling or Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementrequest.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ion Laser Technology Inc), Registration Rights Agreement (Ion Laser Technology Inc)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use commercially reasonable best efforts to effect the or cause a registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall as promptly as practicable (in each case, to the extent applicable):will:
(ia) Use its commercially reasonable best efforts to prepare and file with the Commission SEC, a registration statement within the time periods specified herein, and use its commercially reasonable best efforts to effect such registration, cause such registration statement to become effective at the earliest possible date permitted as promptly as practicable and to remain effective under the rules Securities Act until (i) the Lapse Date with respect to registrations pursuant to Section 2(b) and regulations (ii) until the earlier of the Commission, such time as all securities covered thereby are no longer Registrable Securities or one hundred and thereafter use commercially reasonable efforts to cause eighty (180) days after such registration statement becomes effective with respect to remain effective registrations pursuant to the terms of this Agreement; providedSection 2(a), however, that the Company in every case as any such period may discontinue any registration of its securities which are not Registrable Securities at any time prior be extended pursuant 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 (“Selling Holders”Section 5(h) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;hereto.
(iib) prepare Prepare and file (and, if applicable, cause to become effective) with the Commission SEC, as promptly as practicable, such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and for such period of time required by Section 5(a) above, as such period may be extended pursuant to 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 until during the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in period during which any such registration statement or is required to be effective.
(d) Furnish to any Holder and any underwriter of Registrable Securities, (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of copies (including manually executed and conformed copies copies) of such registration statement and of each amendment thereof and supplement thereto (in each case including all annexes, appendices, schedules and exhibits), (ii) such number of copies of the prospectus contained used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and any summary the final prospectus), and (iii) and any such number of copies of other prospectus filed under Rule 424 under the Securities Actdocuments, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents each case as such Selling Holder and underwriter, if any, or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;request.
(ive) use Use its commercially reasonable best efforts to register or qualify such all Registrable Securities covered by such registration statement under such other the securities laws or "blue sky sky" laws of such jurisdictions states of the United States as any Selling Holder and or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holderjurisdictions; provided, except however, that the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdiction;subject.
(vf) use Use, as soon as practicable after the effectiveness of the registration statement, commercially 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 commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with with, or approved by by, such other United States public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;.
(viig) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for Use its commercially reasonable best efforts to list the Company, covering the matters customarily Common Stock 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 on any securities exchange (or if applicable, 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 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 Holder, confirm such Inspector notification in connection with such registration statement; providedwriting, 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 when a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the a registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request been declared effective by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
SEC, (3ii) of the issuance by the Commission 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 by any Person for that such or a similar purpose;
, (4iii) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ixiv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the registration statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (v) of the Company’s first full quarter after 's determination that the effective date filing of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 Registration Statement shall be necessary or appropriate. Upon the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in clause (iv) or (v) of this Section 3.6(a)(ix5(h), such Selling Holder the Holders shall forthwith discontinue such Selling Holder’s any offer and disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 3.6(a)(ix) which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s 's expense, all copies, copies (other than permanent file copies, ) of the defective prospectus covering such Registrable Securities which are then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable SecuritiesHolders' possession. In the event If the Company shall give such noticeprovide any notice of the type referred to in the preceding sentence, any applicable 60-day the period during which such the registration statement must remain statements are required to be effective pursuant to this Agreement as set forth under Section 5(a) shall be extended by the number of days during the period from and including the date of giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) is provided, to and including the date when all such Selling Holders shall receive have received copies of the corrected prospectus.
(i) Enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the disposition of such Registrable Securities, and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by any Holder of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement including, without limitation, using commercially reasonable best efforts to cause its independent accountants to deliver to the Company's Board of Trustees (and to the Holders of Registrable Securities 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 letter cannot be obtained through the exercise of commercially reasonable best efforts, cause its independent accountants to deliver to the Company's Board of Trustees (and to the Holders of Registrable Securities being sold in any registration) a supplemented comfort letter based on negotiated procedures providing comfort with respect to the Company's financial statements included or amended prospectus incorporated by reference in the registration statement at the highest level permitted to be given by such accountants under the then applicable standards of the Association of Independent Certified Accountants with respect to such registration statement. In addition, the Company shall furnish to the Holders of Registrable Securities being included in any registration hereunder an opinion of counsel substantially identical in substance and such prospectus shall have been filed with the Commissionscope to that customarily delivered to underwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (Brandywine Realty Trust), Registration Rights Agreement (Brandywine Realty Trust)
Registration Procedures. (a) If and whenever the Company Stratos is required by the provisions of this Agreement to use commercially reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall Stratos shall, as promptly expeditiously as practicable (in each case, to the extent applicable):possible:
(ia) prepare and file with the Commission SEC a registration statement to effect on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form (i) shall be selected by Stratos and (ii) shall, in the case of a shelf registration, cause be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to become effective at form in all material respects with the earliest possible date permitted under the rules and regulations requirements of the Commissionapplicable form and include all financial statements required by the SEC to be filed therewith, and thereafter Stratos shall use commercially reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided(PROVIDED, howeverHOWEVER, 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 a registration statement or prospectus or any amendments or supplements thereto, the Company or comparable statements under securities or blue sky laws of any jurisdiction, Stratos will furnish to one counsel for the counsel Holders participating in the planned offering (selected by the holders Initiating Holder, in the case of Registrable Securities which are a registration pursuant to be included Section 2.1, and selected by the Major Holder, in such the case of a registration (“Selling Holders”pursuant to Section 2.2) and the underwriters, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such 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 review to be conducted with reasonable promptnessregistration statement or the underwriters, if any, shall reasonably object in writing);
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for such period (which shall not be required to exceed one hundred eighty (180) days in the case of a registration pursuant to 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 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 until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivestatement;
(iiic) furnish furnish, without charge, to each Selling Holder seller of such Registrable Securities and each underwriter, if any, of the securities being sold covered by such Selling Holder registration statement such number of conformed copies of such registration statement and of statement, each amendment and supplement thereto (in each case including all exhibits), such number of copies of and the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder seller and underwriter, if any, underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerseller (Stratos hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(ivd) use commercially reasonable its best efforts to register or qualify such the Registrable Securities covered by such registration statement under such other securities laws or "blue sky sky" laws of such jurisdictions as any Selling Holder and sellers of Registrable Securities or any underwriter of the securities being sold by such Selling Holder managing underwriter, if any, shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Holderjurisdictions, except that the Company in no event shall not for any such purpose Stratos be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not not, but for the requirements of this clause paragraph (iv) d), be obligated required to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable efforts to cause such Registrable Securities to be listed on promptly notify 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 Holder selling 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 and each Selling Holder and managing 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 any: (i) when 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 attorneypre-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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statementeffective amendment, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement has been filed and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (2ii) of any request by the Commission SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
; (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
; (4iv) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company Stratos of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (ixv) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening existence of any event as a result fact of whichwhich Stratos becomes aware which results in the registration statement, the prospectus included in such registration statement, as then in effect, includes related thereto or any document incorporated therein by reference containing an untrue statement of a material fact or omits omitting to state any a material fact required to be stated therein or necessary to make the statements any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, andsecurities sale agreement, at or other similar agreement, relating to the request of any Selling Holderoffering 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 copies of a supplement to prospectus supplemented or an amendment of such prospectus as may be necessary amended 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 in the light of the circumstances under which they were made not misleading;
(xf) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the CommissionSEC, and make generally available to Selling Holdersits security holders, as promptly soon as practicablereasonably 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 12 months, but not more than 18 months, twelve (12) consecutive months beginning with the first day of the Company’s Stratos' first full calendar quarter after the effective date of such the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) 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;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of Stratos' businesses and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly prior to the filing of any document that is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), provide copies of such document to counsel for the selling holders of Registrable Securities and to each managing underwriter, if any, and make Stratos' representatives reasonably available for discussion of such document and make such changes in such document concerning the selling holders prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;
(p) furnish to the Major Holder participating in the offering and the managing underwriter, without charge, at least one (1) signed copy, and to each other Holder participating in the offering, without charge, at least one (1) photocopy of a signed copy, of the registration statement and any post-effective amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(q) cooperate with the sellers selling Holders of Registrable Securities and the managing underwriter underwriter, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statementthe Registrable Securities to be sold, and enable cause such securities Registrable Securities to be issued in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use commercially reasonable efforts underwriting agreement prior to comply with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event that the offering sale of Registrable Securities is to be made by or through the underwriters or, if not an underwriterunderwritten offering, 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 in accordance with the covenants and agreements instructions 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 selling Holders of Registrable Securities registered pursuant at least three (3) business days prior to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers sale 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 orders in respect thereto.thereof;
(cr) take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities; and
(s) 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 action as is necessary to make any such prohibition inapplicable. Stratos may require 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 Stratos such information regarding such seller and the distribution of such securities as Stratos may from time to time reasonably request; PROVIDED, HOWEVER, that such information is necessary for Stratos to consummate such registration and shall be used only in connection with such registration. Each Selling Holder of Registrable Securities agrees that upon receipt of any notice from the Company Stratos of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 3.6(a)(ix)2.4, such Selling Holder shall forthwith will discontinue such Selling Holder’s 's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 3.6(a)(ix) 2.4 and, if so directed by the CompanyStratos, will deliver to the Company, Stratos (at the Company’s Stratos' expense, ) all copies, other than permanent file copies, then in such Selling Holder’s 's possession of the prospectus current covering such Registrable Securities that was in effect at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event the Company Stratos shall give any such notice, any the applicable 60-day period during which such registration statement must remain effective pursuant to mentioned in paragraph (b) of this Agreement Section 2.4 shall be extended by the number of days during the such period from and including the date of the giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to and including the date when all each seller of any Registrable Securities covered by such Selling Holders registration statement shall receive such a have received the copies of the supplemented or amended prospectus and contemplated by paragraph (e) of this Section 2.4. If any such prospectus 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 been filed with the Commission.right to require (i) the 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. (a) If and whenever Whenever any Holder requests that any Registerable Securities be registered pursuant to this Agreement. the Company is required to shall use commercially reasonable best efforts to effect effect, as soon as practical as provided herein, the registration and the sale of any Registrable such Registerable Securities under in accordance with the Securities Act as provided in Sections 3.1 and 3.2intended methods of disposition thereof, and, pursuant thereto, the Company shall shall, as promptly soon as practicable (in each case, to the extent applicable):practical as provided herein:
(i) subject to the other provisions of this Agreement, use reasonable best efforts to prepare and file tile with the Commission SEC a registration statement Registration Statement with respect to effect such registration, Registerable Securities and cause such registration statement Registration Statement to become effective at the earliest possible date permitted under the rules (unless it is automatically effective upon filing); and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement tiling a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to all Participating Holder(s) and the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) underwriters or other distributors, if any, copies of all such documents proposed to be filedtiled, which including documents will be subject to incorporated by reference in the review Prospectus and, if requested by any Participating Holder, one set of such counselthe exhibits incorporated by reference, and such review all Participating Holder(s) and one counsel selected by the ▇▇▇▇▇ Holders holding a majority of the Registerable Securities held by all ▇▇▇▇▇ Holders to be conducted registered on such Registration Statement (“Holder’s Counsel”), shall have three (3) Business Days to review and comment on the Registration Statement and each such Prospectus (and each amendment or supplement thereto) before it is filed with reasonable promptnessthe SEC, and each Participating Holder shall have the opportunity to object to any information pertaining to such Participating Holder that is contained therein within three (3) Business Days of receipt of the documents proposed to be tiled, and the Company will make the corrections reasonably requested by the Participating Holder(s) with respect to such information prior to filing any Registration Statement or Prospectus or any amendment or supplement thereto;
(ii) use reasonable best efforts to prepare and file tile with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to comply with the applicable requirements of the Securities Act and to keep such registration statement Registration Statement effective for the relevant period required hereunder, but in any case (other than a Shelf Registration) no longer than is necessary to complete the distribution of Registerable Securities covered by such Registration Statement, and to comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities Registerable Securities covered by such registration statement until the earlier of Registration Statement during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveStatement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registerable Securities for sale in any jurisdiction in the United States;
(iv) furnish to each Selling Holder all Participating Holders and each managing underwriter, if any, of the securities being sold by such Selling Holder such number of without charge, conformed copies of such registration statement each Registration Statement and amendment thereto and copies of each amendment and supplement thereto promptly after they are filed with the SEC (in each case including all exhibitsbut only one set of exhibits thereto need be provided); and deliver, without charge, to such Persons such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and final Prospectus and any summary prospectussupplement thereto as the Participating Holder(s) and any other prospectus filed under Rule 424 under may reasonably request in order to facilitate the disposition of the Registerable Securities Act, covered by such Registration Statement 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;
(ivv) use commercially reasonable efforts to register or qualify such Registrable Registerable Securities covered by such registration statement under such other securities laws or blue sky laws of such U.S. jurisdictions as any Selling Holder the Participating Holder(s) reasonably request and any underwriter of the securities being sold by continue such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary registration or advisable to enable such Selling Holder and underwriter to consummate the disposition qualification in effect in such jurisdictions of for as long as the Registrable Securities owned by such Selling Holder, except applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company shall will not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause subparagraph (iv) be obligated to be so qualifiedv), to (8) subject itself to taxation in any such jurisdiction or to file a general (C) consent to general 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) notify each Participating Holder and each distributor of such Registerable Securities, at any time when a Prospectus relating thereto is required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading, and, at the request of any Participating Holder, the Company shall use commercially reasonable best efforts to cause prepare, as soon as practical, a supplement or amendment to such Registrable Securities covered by Prospectus so that, as thereafter delivered to the purchasers of such registration Registerable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to be registered with or approved by such other governmental agencies or authorities as may be state any material fact necessary to enable make the Selling Holder(s) thereof to consummate the disposition of such Registrable Securitiesstatements therein not misleading;
(vii) in connection with the case of an Underwritten Offering, obtain enter into an underwriting agreement containing such provisions (including provisions for each Selling Holder indemnification, lockups, opinions of counsel and underwriter:comfort letters) as arc customary and reasonable for an offering of such kind. and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registerable Securities (including making members of senior management of the Company available to participate in “road-show” and other customary marketing activities):
(1viii) 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 an Underwritten Offering. and to the extent not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72prohibited by applicable law or pre-existing applicable contractual restrictions, an “agreed upon procedures” letter(A) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (andmake reasonably available, 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”Participating Holder(s), all financial Holder’s Counsel. the managing underwriters of such offering and other recordsone attorney (and one accountant) for such managing underwriter, pertinent corporate documents and properties financial and other records of the Company and the subsidiaries and controlled Affiliates, (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and B) cause the Company’s officers, directors officers and employees to supply all information reasonably requested by any the Participating Holder(s) or such Inspector managing underwriters or attorney in connection with such registration statement; offering and (e) make the Company’s independent accountants available for any such managing underwriters’ due diligence: provided, however. that such records and other information shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews; and provided, further, that, unless the disclosure of such Records records is necessary to avoid or correct a misstatement or omission in the registration statement Registration Statement or otherwise to comply with federal securities laws or the release of such Records 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 (iI) 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 (ii2) if either (Ax) the Company has requested and been granted from the Commission SEC confidential treatment of such information contained in any filing tiling with the Commission SEC or documents provided supplementally or otherwise or (By) the Company reasonably determines in good faith that such Records records are confidential and so notifies the Inspectors Persons requesting the records in writing unless prior to furnishing any such information with respect to (i1) or (ii2) such holder of Registrable Securities Person requesting such information agrees, and causes each of its Inspectors, agrees to enter into a confidentiality agreement on terms reasonably acceptable in customary form and subject to the Company; customary exceptions: and provided, further, that each Holder of Registrable Securities such Person agrees that it will, upon learning that disclosure of such Records 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 records deemed confidential;
(viiiix) use reasonable best efforts to cause all such Registerable Securities to be listed on each securities exchange (if any) on which similar securities of the same class issued by the Company are then listed:
(x) provide a transfer agent and registrar for all such Registerable Securities not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registerable Securities pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registerable Securities to be sold:
(xi) make generally available to its security holders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earnings statement under Section 11(a) of the Securities Act and Rule 158 thereunder, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act; and
(xii) as promptly as practicable notify in writing each Selling Holder the Participating Holder(s) and the underwritersmanaging underwriters of any Underwritten Offering, if any, of the following events:
(1) when the filing of the registration statementRegistration Statement, any pre-effective amendment, the prospectus Prospectus or any prospectus Prospectus supplement related thereto, or any Issuer Free Writing Prospectus or post-effective amendment to the registration statement Registration Statement has been filed and, with respect to the registration statement Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
(2) of any request by the Commission SEC for amendments or supplements to the registration statement Registration Statement or the prospectus Prospectus or for any additional information;information regarding any Participating Holder:
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the Commission SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;Registration Statement; and
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Registerable Securities for sale under the applicable securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;jurisdiction; and
(ixxiii) notify each Selling keep Holder’s Counsel reasonably apprised as to the intention and progress of the Company with respect to any Registration Statement hereunder, 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, and, at the request of any Selling including by providing Holder, promptly prepare and furnish to such seller a reasonable number of ’s Counsel with copies of a supplement to all written correspondence with the SEC in connection with any Registration Statement or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus filed hereunder.
(b) The Company shall not include an ensure that (i) no Registration Statement (including any amendments thereto) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein not misleading;, and (ii) no Prospectus (including any supplements thereto) shall contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, except for any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in reliance on and in conformity with written information furnished to the Company by or on behalf of the Holder(s) or any underwriter or other distributor specifically for use therein.
(xc) make every At all times after the Company has filed a Registration Statement with the SEC pursuant to the requirements of the Securities Act, the Company shall use reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations continuously maintain in effect the Registration Statement tor the relevant period required hereunder under Section 12 of the CommissionExchange Act, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of use reasonable best efforts to file all reports required to be filed by it under the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers Exchange Act and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of adopted by the FINRA; andSEC thereunder, all to the extent required to enable the Holder(s) to be eligible to sell Registerable Securities pursuant to Rule 144 under the Securities Act.
(xvid) 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. The Company may require each Selling Holder the Participating Holder(s) and each underwriter, if any, distributor of Registerable Securities as to which any registration is being effected to furnish to the Company in writing such any other information regarding each Selling Holder or underwriter such Person and the distribution of such Registrable Securities securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementrequest.
(be) Without limiting The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus. Neither any Participating Holder nor any other seller of Registerable Securities may use a free-writing prospectus to offer or sell any such shares without the foregoing, in the event Company’s prior written consent.
(f) It is understood and agreed 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 any failure of the Company contained herein) by an issuer to file a Registration Statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of common stock time as provided 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 due to the underwriterreasons that are not reasonably within its control, if or due to any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership refusal of the Registrable Securities being sold SEC to permit a Registration Statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (unless, in or on any documents incorporated therein by reference) despite the Company’s sole discretiongood faith and diligent efforts to resolve those comments. shall not be a breach of this Agreement. However, neither shall any such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from failure relieve the Company of the happening of any event of the kind described in Section 3.6(a)(ix), its obligations hereunder to use reasonable best efforts to remedy such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionfailure.
Appears in 2 contracts
Sources: Registration Rights Agreement (Amc Entertainment Inc), Registration Rights Agreement (Amc Entertainment Holdings, Inc.)
Registration Procedures. (a) If and whenever In the case of each registration effected by the Company is required pursuant to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Article I or II, the Company shall will keep each Holder participating in such registration reasonably informed as promptly to the status thereof and, at its expense, the Company will, as practicable (in each case, expeditiously as possible to the extent applicable)::
(ia) prepare and file file, as promptly as reasonably practicable, with the Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at securities in accordance with the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms applicable provisions of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(iib) prepare and file file, as promptly as reasonably practicable, with the Commission such amendments (amendments, including post-effective amendments) , and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein with such registration statement 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with (including to permit the intended methods method of disposition by distribution thereof) and as may be necessary to keep the seller or sellers thereof registration statement continuously effective for the period set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectivethis Agreement;
(iiic) furnish to each Selling Holder the Holders participating in such registration and each underwriterto their legal counsel copies of the registration statement proposed to be filed, if any, and provide such Holders and their legal counsel the reasonable opportunity to review and comment on such registration statement;
(d) furnish to the Holders participating in such registration and to the underwriters of the securities being sold by registered 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 reasonable number of copies of the prospectus contained in such registration statement (including each statement, preliminary prospectus and any summary prospectus) and any other final prospectus filed under Rule 424 under as 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, underwriters may reasonably request in order to facilitate the public sale or other disposition offering of the Registrable Securities owned by such sellersecurities;
(ive) use commercially reasonable efforts to register or qualify such notify each Holder of 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the Company’s knowledge of the happening of any event as a result of which, which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or incomplete in the light of the circumstances then existing, and, subject to Section 3.1(n), at the request of any Selling such Holder, prepare promptly prepare and furnish to such seller 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 purchaser of such Registrable Securitiesshares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or incomplete in the light of the circumstances then existing;
(xf) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules register and regulations of qualify the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of covered by such registration statement a supply under such other securities or blue sky laws of such certificates jurisdictions as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as shall be reasonably requested by the Selling Holders and Holders; provided, however, that the underwriters Company shall not be required in the offering, marketing connection therewith or selling as a condition thereto to qualify to do business or to file a general consent to service of the Registrable Securitiesprocess in any such states or jurisdictions in which it is not already qualified;
(xivg) 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 event that the Registrable Securities;
(xv) cooperate Securities are being offered in an underwritten public offering, enter into and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) perform its obligations under an underwriting agreement on customary terms 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 applicable provisions of the FINRA; andthis Agreement;
(xvih) otherwise use commercially reasonable efforts to comply with all applicable rules furnish, (i) on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, an opinion and regulations negative assurance letter, dated as of such date, of the Commission legal counsel representing the Company for the purposes of such registration, in form and all reporting requirements under substance as is customarily given to underwriters in an underwritten public offering, addressed to the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriterunderwriters, if any, to furnish and (ii) on the Company in writing such information regarding each Selling Holder or underwriter and date that the distribution 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 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 may from time and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to time supply all relevant information and participate in customary due diligence sessions in each case reasonably request to complete requested by any such representative, underwriter, counsel or amend the information required by 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 (bthe “Requested Information”), unless (1) Without limiting any the disclosure of the foregoingRequested 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 event that the offering of Registrable Securities is Requested Information was within such underwriter’s possession on a non-confidential basis prior to be made it being furnished to such underwriter 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 on behalf of the Company contained herein) or any of its representatives, provided that the source of such information was not bound by an issuer a confidentiality agreement or other contractual, legal or fiduciary obligation of common stock in underwriting agreements confidentiality with respect to offerings of common stock for such information or (5) the account of, or Requested Information becomes available to such underwriter on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, a non-confidential basis from a source other than the Company shall furnish or any of its representatives, provided that such source is not bound by a confidentiality agreement or other contractual, legal or fiduciary obligation of confidentiality with respect to such information. Such underwriter agrees that it shall, upon learning that disclosure of the Requested Information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the 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 Company and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver to allow the Company, at the Company’s expense, all copiesto undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Requested Information deemed confidential;
(j) in the event that any broker-dealer underwrites any Registrable Securities or participates as a member of an underwriting syndicate or selling group or “participates in an offering” (within the meaning of the FINRA Rules) thereof, whether as a Holder or as an underwriter, placement, sales agent or broker or dealer in respect thereof, or otherwise, the Company will, upon the reasonable request of such broker-dealer, comply with any reasonable request of such broker-dealer in complying with the FINRA Rules;
(k) notwithstanding any other than permanent file copiesprovision of this Agreement, then if the Board of Directors of the Company has determined in such Selling Holder’s possession good faith that the disclosure necessary for continued use of the prospectus current at and registration statement by the time of receipt of such notice relating Holders could be materially detrimental to such Registrable Securities. In the event Company, the Company shall give such notice, have the right not to file or not to cause the effectiveness of any applicable 60-day period during which such registration covering any Registrable Securities and to suspend the use of the prospectus and the registration statement must remain effective pursuant covering any Registrable Security for such period of time as its use would be materially detrimental to this Agreement shall be extended the Company by delivering written notice of such suspension to all Holders listed on the number of days during Company’s records; provided, however, that in any 12-month period the period from Company may exercise the right to such suspension not more than twice. From and after the date of giving of a notice regarding of suspension under this Section 3.1(k), each Holder agrees not to use the happening prospectus or registration statement until the earlier of an event (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 directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities;
(m) use its reasonable best efforts to cause all shares of Registrable Securities to be listed on the national securities exchange on which the Common Stock is then listed; and
(n) cause its officers to use their reasonable best efforts to support the marketing of the kind described Registrable Securities (including, without limitation, participation in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus “road shows” and such prospectus shall have been filed with the Commissionother customary marketing activities, which may be virtual).
Appears in 2 contracts
Sources: Registration Rights Agreement (Cryoport, Inc.), Securities Purchase Agreement (Cryoport, Inc.)
Registration Procedures. (a) If and whenever the Company is ----------------------- required by the provisions of this Agreement to effect a registration of Registrable Securities:
(a) The Company will use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC, within the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (or on such other registration statement form available to effect such registrationthe Company that permits the greatest extent of incorporation by reference of materials filed by the Company, cause such registration statement to become effective at the earliest possible date permitted under the rules Exchange Act) and regulations of the Commission, and thereafter 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 such Registration Statement becomes effective, in the terms case of this Agreement; providedregistrations pursuant to Section 2, howeveror (2) 90 days after such Registration Statement becomes effective, that in the Company case of registrations pursuant to Section 3, in every case as any such period may discontinue any registration of its securities which are not Registrable Securities at any time prior be extended pursuant to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement subsection (h) or any amendments thereto, the Section 8.
(b) The Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement effective and for such period of time required by subsection (a), as such period may be extended pursuant to 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 until Registration Statement during the earlier of period during which any such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant Statement is required to Section 3.1, the expiration of 60 days after such registration statement becomes be effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;.
(iiid) The Company will furnish to each Selling any Holder and each underwriter, if any, any underwriter of the securities being sold by such Selling Holder Registrable Securities (1) such number of copies (including manually executed and conformed copies copies) of such registration statement Registration Statement and of each amendment thereof and supplement thereto (in each case including all annexes, appendices, schedules and exhibits), (2) such number of copies of the prospectus contained used in connection with such registration statement Registration Statement (including each preliminary prospectus, any summary prospectus and any summary prospectusthe final prospectus and including prospectus supplements), and (3) and any such number of copies of other prospectus filed under Rule 424 under the Securities Actdocuments, in conformity with each case as the requirements of the Securities Act, and any Issuer Free Writing Prospectus and Holder or such other documents as such Selling Holder and underwriter, if any, underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;request.
(ive) The Company will use commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities laws or "blue sky sky" laws of such jurisdictions states of the United States and any other jurisdiction as any Selling Holder and or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that jurisdictions; but the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdiction;subject.
(vf) use The Company will use, as soon as practicable after the effectiveness of the Registration Statement, 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 Registration Statement to be registered with with, or approved by by, such other United States and Cayman Islands public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;.
(viig) The Company will use commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, 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 Holder, confirm such notification in connection with an Underwritten Offeringwriting, 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) when 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement and when a Registration Statement or any post-effective amendment theretothereto has been filed with and declared effective by the SEC, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission SEC of any stop order suspending or the effectiveness coming to its knowledge of the registration statement or the initiation of any proceedings by any Person for that purpose;
, (43) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ix4) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the Registration Statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (5) of the Company’s first full quarter after 's determination that the effective date filing of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 a Registration Statement is necessary or appropriate. Upon the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 3.6(a)(ixclause (4), such Selling Holder the Holders shall forthwith discontinue such Selling Holder’s any offer and disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto Registration Statement covering such Registrable Securities until such Selling Holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 3.6(a)(ix) which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, Company all copies, copies (other than permanent file copies, ) of the defective prospectus covering such Registrable Securities which are then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable SecuritiesHolders' possession. In the event If the Company shall give such noticeprovide any notice of the type referred to in the preceding sentence, any applicable 60-day the period during which such registration statement must remain the Registration Statement is required by subsection (a) to be effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) is provided, to and including the date when all such Selling the Holders shall receive have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making its management available to the extent reasonably requested by the Holders to participate in marketing presentations to potential investors in connection with any underwritten offering), and in that regard, will deliver to the Holders such documents and certificates as may be reasonably requested by the Holders of a supplemented majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement, or amended prospectus and if such prospectus shall have been filed letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the CommissionCompany's financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such accountants under the then applicable standards of the American Institute of Certified Public Accountants with respect to such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Scottish Annuity & Life Holdings LTD), Registration Rights Agreement (Scottish Annuity & Life Holdings LTD)
Registration Procedures. (a) If and whenever Upon the receipt of a request for registration of any Registrable Securities pursuant to Section 2 or Section 3 of this Agreement, Company is required to will use commercially reasonable its best efforts to effect the registration of any the Registrable Securities under in accordance with the Securities Act intended method of disposition thereof, and pursuant thereto Company will as provided in Sections 3.1 and 3.2, the Company shall expeditiously as promptly as practicable (in each case, to the extent applicable):possible:
(i) prepare 9.1.1 Prepare and file with the Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted on an appropriate form under the rules Securities Act and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementbecome effective; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such a registration statement or prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of any registration statement, Company will promptly furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration registered and sold pursuant to this Agreement (the “Selling Registered Holders”) and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the review of such counselthe Registered Holders and the underwriters, and Company will not file any registration statement or amendment thereto, or any prospectus or any supplement thereto (including such review documents incorporated by reference) to be conducted with reasonable promptness;which the Registered Holders or the underwriters, if any, shall reasonably object in light of the requirements of the Securities Act and any other applicable laws and regulations.
(ii) prepare 9.1.2 Prepare and file with the Commission such amendments (including and post-effective amendments) and supplements amendments to such a registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for the applicable period; cause the related prospectus to be filed pursuant to Rule 424(b) (or any successor provision) under the Securities Act; cause such prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424(b) (or any successor provision) 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 until during the earlier of such time as all of such securities have been disposed of applicable period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish 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) prospectus.
9.1.3 Notify 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 in writing each Selling Holder Registered Holders and the managing underwriters, if any, of the following events:
promptly, and (1if requested by any such person) the filing of the registration statementconfirm such advice in writing, the (i) when a prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement has been filed, and, with respect to the a registration statement or any post-effective amendment theretoamendment, when the same has become effective;
, (2ii) of any request by the Commission for amendments or supplements to the a registration statement or the related prospectus or for additional information;
, (3iii) of the issuance by the Commission of any stop order suspending the effectiveness of the a registration statement or the initiation of any proceedings by any Person proceeding for that purpose;
, (4iv) when if at any Issuer Free Writing Prospectus includes information that may conflict with time the information contained in the registration statement; and
representations and warranties of Company contemplated by subsection 9.1.10 cease to be true and correct, (5v) of the receipt by the Company of any notification with respect to the suspension of the or qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat of any proceeding for such purpose;
, (ixvi) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event as which requires the making of any changes in a result of which, the registration statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading and (vii) of Company’s reasonable determination that a post-effective amendment to a registration statement would be appropriate or that there exist circumstances not yet disclosed to the public which make further sales under such registration statement inadvisable pending such disclosures and post-effective amendment.
9.1.4 Make reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement, andor the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, at the request of any Selling Holderearliest possible moment.
9.1.5 If requested by the managing underwriters or the Registered Holders in connection with an underwritten offering, promptly prepare immediately incorporate in a prospectus supplement or post effective amendment such information as the managing underwriters and furnish the Registered Holders agree should be included therein relating to such seller a reasonable sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of copies shares of a supplement Registrable Securities being sold to such underwriters and the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or an amendment best efforts underwritten) offering of the Registrable Securities to be sold in such offering; make all required filings of such prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and supplement or make amendments to any registration statement if requested by the Registered Holders or any underwriter of such Registrable Securities.
9.1.6 Furnish to the Registered Holders and each managing underwriter, if any, without charge, at least one signed copy of the registration statement, any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference).
9.1.7 Deliver without charge to the Registered Holders and the underwriters, if any, as many copies of the prospectus or prospectuses (including each preliminary prospectus) and any amendment or supplement thereto as such persons may reasonably request; and Company consents to the use of such prospectus or any amendment or supplement thereto by such Registered Holders and the underwriters, if any, in connection with the offer and sale of the Registrable Securities covered by such prospectus or any amendment or supplement thereto.
9.1.8 Prior to any public offering of Registrable Securities, register or qualify or cooperate with the Registered Holders, the underwriters, if any, and respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Registered Holders or an underwriter reasonably requests in writing; keep each such registration or qualification effective during the period such registration statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable registration statement; provided, however, that Company will not be required in connection therewith or as a condition thereto to qualify generally to do business or subject itself to general service of process in any such jurisdiction where it is not then so subject.
9.1.9 Upon the occurrence of any event contemplated by subsection 9.1.3 (ii) - (vii) above, prepare, to the extent required, a supplement or post-effective amendment to the applicable registration statement or related prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers purchaser of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;.
9.1.10 Enter into such agreements (xincluding an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the Registrable Securities to be covered by such registration are to be offered in an underwritten offering: (i) make every reasonable effort such representations and warranties to obtain the withdrawal of any order suspending Registered Holders to the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings prospectus and documents incorporated by reference, if any, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; (ii) obtain opinions of counsel to Company and updates thereof with respect to the registration statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter prospectus in the form, scope and substance which are customarily delivered in underwritten offerings; (iii) in the case of an underwritten offering, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and obtain opinions of counsel to facilitate the timely preparation Company and delivery of certificates updates thereof (which counsel and opinions (in form, scope and substance) shall not bear any restrictive legends unless required under applicable law)be reasonably satisfactory to the managing underwriters and the Registered Holders) addressed to the Registered Holders and the underwriters, if necessary or appropriateany, representing securities sold under any registration statement, covering the matters customarily covered in opinions delivered in underwritten offerings and enable such securities to other matters as may be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Registered Holders and such underwriters; (iv) obtain “cold comfort” letters and updates thereof from Company’s independent certified public accountants addressed to the Registered Holders and the underwriters underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters by accountants in connection with underwritten offerings; (v) if any underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures customarily included in underwriting agreements in underwritten offerings; and (vi) Company shall deliver such documents and certificates as may be requested by the Registered Holders and the managing underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the offering, marketing underwriting agreement or selling other agreement entered into by Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder.
9.1.11 Make available for inspection by a representative of the Registrable Securities;
(xiv) if Registered Holders, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the Registered Holders or such underwriter, all financial and other records, pertinent corporate documents and properties of Company, and cause Company’s officers, directors and employees to supply all information reasonably requested by any Selling Holders or any such representative, underwriter, promptly incorporate attorney or accountant in the registration statement or connection with such registration; provided that 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 limitationrecords, information relating to the “Plan or documents that are designated by Company in writing as confidential shall be kept confidential by such Persons unless disclosures of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authoritysuch records, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that information or documents is required to be undertaken in accordance with the rules and regulations of the FINRA; andby court or administrative order.
(xvi) otherwise 9.1.12 Otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the Commission and all reporting requirements under make generally available to its security holders earning statements satisfying the rules and regulations provisions of Section 11(a) of the Exchange Securities Act. The Company may require , no later than 90 days after the end of any 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 underwritten offering and (ii) beginning with the first day of Company’s first fiscal quarter next succeeding each Selling Holder and each underwritersale of Registrable Securities after the effective date of a registration statement, which statements shall cover said 12-month periods.
9.1.13 If Company, in the exercise of its reasonable judgment, objects to any change reasonably requested by the Registered Holders or the underwriters, if any, to furnish the any registration statement or prospectus or any amendments or supplements thereto (including documents incorporated or to be incorporated therein by reference) as provided for in this Section 9, Company in writing shall not be obligated to make any such information regarding each Selling Holder or underwriter change and the distribution of such Registered Holders may withdraw their 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 foregoingregistration, in the which event that the offering of Registrable Securities is to be made by or through an underwriter, the (i) Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities pay all registration expenses (including its counsel fees and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained hereinexpenses) by an issuer of common stock incurred in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 applicable 60-day period during which such registration statement must remain effective or amendment thereto or prospectus or supplement thereto, and (ii) in the case of a registration being effected pursuant to this Agreement Section 2, such registration shall be extended by the number of days during the period from the date of giving of a notice regarding the happening of an event not count as one of the kind described in registrations Company is obligated to effect pursuant to Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission2 hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Beta Oil & Gas Inc), Registration Rights Agreement (Beta Oil & Gas Inc)
Registration Procedures. (a) If and whenever the Company is ----------------------- required by the provisions of this Agreement to effect a registration of Registrable Securities:
(a) The Company will use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC, within the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (or on such other registration statement form available to effect such registrationthe Company that permits the greatest extent of incorporation by reference of materials filed by the Company, cause such registration statement to become effective at the earliest possible date permitted under the rules Exchange Act) and regulations of the Commission, and thereafter 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 such Registration Statement becomes effective, in the terms case of this Agreement; providedregistrations pursuant to Section 2, howeveror (2) 90 days after such Registration Statement becomes effective, that in the Company case of registrations pursuant to Section 3, in every case as any such period may discontinue any registration of its securities which are not Registrable Securities at any time prior be extended pursuant to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement subsection (h) or any amendments thereto, the Section 8.
(b) The Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments, post- effective amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement effective and for such period of time required by subsection (a), as such period may be extended pursuant to 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 until Registration Statement during the earlier of period during which any such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant Statement is required to Section 3.1, the expiration of 60 days after such registration statement becomes be effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;.
(iiid) The Company will furnish to each Selling any Holder and each underwriter, if any, any underwriter of the securities being sold by such Selling Holder Registrable Securities (1) such number of copies (including manually executed and conformed copies copies) of such registration statement Registration Statement and of each amendment thereof and supplement thereto (in each case including all annexes, appendices, schedules and exhibits), (2) such number of copies of the prospectus contained used in connection with such registration statement Registration Statement (including each preliminary prospectus, any summary prospectus and any summary prospectusthe final prospectus and including prospectus supplements), and (3) and any such number of copies of other prospectus filed under Rule 424 under the Securities Actdocuments, in conformity with each case as the requirements of the Securities Act, and any Issuer Free Writing Prospectus and Holder or such other documents as such Selling Holder and underwriter, if any, underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;request.
(ive) The Company will use commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities laws or "blue sky sky" laws of such jurisdictions states of the United States and any other jurisdiction as any Selling Holder and or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that jurisdictions; but the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdiction;subject.
(vf) use The Company will use, as soon as practicable after the effectiveness of the Registration Statement, 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 Registration Statement to be registered with with, or approved by by, such other United States and Cayman Islands public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;.
(viig) The Company will use commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, 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 Holder, confirm such notification in connection with an Underwritten Offeringwriting, 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) when 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement and when a Registration Statement or any post-effective amendment theretothereto has been filed with and declared effective by the SEC, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission SEC of any stop order suspending or the effectiveness coming to its knowledge of the registration statement or the initiation of any proceedings by any Person for that purpose;
, (43) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ix4) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the Registration Statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (5) of the Company’s first full quarter after 's determination that the effective date filing of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 a Registration Statement is necessary or appropriate. Upon the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 3.6(a)(ixclause (4), such Selling Holder the Holders shall forthwith discontinue such Selling Holder’s any offer and disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto Registration Statement covering such Registrable Securities until such Selling Holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 3.6(a)(ix) which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, Company all copies, copies (other than permanent file copies, ) of the defective prospectus covering such Registrable Securities which are then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable SecuritiesHolders' possession. In the event If the Company shall give such noticeprovide any notice of the type referred to in the preceding sentence, any applicable 60-day the period during which such registration statement must remain the Registration Statement is required by subsection (a) to be effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) is provided, to and including the date when all such Selling the Holders shall receive have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making its management available to the extent reasonably requested by the Holders to participate in marketing presentations to potential investors in connection with any underwritten offering), and in that regard, will deliver to the Holders such documents and certificates as may be reasonably requested by the Holders of a supplemented majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement, or amended prospectus and if such prospectus shall have been filed letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the CommissionCompany's financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such accountants under the then applicable standards of the American Institute of Certified Public Accountants with respect to such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Scottish Annuity & Life Holdings LTD), Registration Rights Agreement (Scottish Annuity & Life Holdings LTD)
Registration Procedures. (a) If and whenever In the case of each registration, qualification, or compliance effected by the Company is required pursuant to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 3 hereof, the Company shall will keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as promptly as practicable (in each case, to the extent applicable):initiation of each registration, qualification, and compliance and as to the completion thereof. With respect to any registration statement filed pursuant to Section 3, the Company will use its commercially reasonable best efforts to:
(ia) prepare and file with the Commission with respect to such Registrable Securities, a registration statement to effect such registrationon Form S-1, cause such registration statement to become effective at or any other form for which the earliest possible date permitted under Company then qualifies or which counsel for the rules Company shall deem appropriate, and regulations which form shall be available for the sale of the CommissionRegistrable Securities in accordance with the intended method(s) of distribution thereof, and thereafter use its commercially reasonable efforts to cause such registration statement to become and remain effective pursuant at least for a period ending with the first to occur of (i) the terms sale of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not all Registrable Securities at any time prior to the effective date of covered by the registration statement relating theretostatement, (ii) the availability under Rule 144 for the Holder to immediately, freely resell without restriction all Registrable Securities covered by the registration statement, (iii) 90 days after a Piggyback Registration is declared effective by the Commission (in each case, the“Effectiveness Period”); provided, further provided that no later than two business days before filing such with the Commission a registration statement or prospectus or any amendments or supplements thereto, the Company will shall (i) furnish to the one special counsel (“Holders’ Counsel”) selected by the holders Company for the benefit of Registrable Securities the Holders (which are Holders’ Counsel shall be the same Holders’ Counsel selected under the Registration Rights Agreement of the Company dated October 17, 2007 so long as the Investors remain a party to be included in such registration (“Selling Holders”) that agreement), copies of all such documents proposed to be filed (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed, which documents will shall be subject to the review of such counselHolders’ Counsel, and (ii) notify each Holder of Registrable Securities covered by such review registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to be conducted with reasonable promptnessprevent the entry of such stop order or to remove it if entered;
(iib) if a registration statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;
(c) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective during the Effectiveness Period (but in any event at least until expiration of the 90-day period referred to in Section 4(3) of the Securities Act and to Rule 174, or any successor thereto, thereunder, if applicable), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement;
(d) furnish, without charge, to each Holder of Registrable Securities covered by such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such reasonable number of conformed copies of such registration statement and of (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto as such Holder may request, (in each case including all exhibits), ii) such number of copies of the prospectus contained 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) as such Holders may request, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and (iii) 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 sellerHolder, but only during the Effectiveness Period;
(ive) use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other applicable securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of Registrable Securities covered by such registration statement reasonably requests as may be necessary for the marketability of the securities being sold Registrable Securities (such request to be made by such Selling Holder shall reasonably request, the time the applicable registration statement is deemed effective by the Commission) and take do any and all other action acts and things 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 ; provided that the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause paragraph (ive), (ii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general (iii) consent to general service of process in any such jurisdiction;
(vf) use commercially reasonable efforts to cause as promptly as practicable after becoming aware of such event, notify each Holder of 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event which comes to the Company’s attention if as a result of which, such event the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller a reasonable number of copies of Holder a supplement or amendment to or an amendment of such prospectus as may be necessary (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, 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;
(xg) make every reasonable effort comply, and continue to obtain comply during the withdrawal of any order suspending the effectiveness of period that such registration statement;
(xi) otherwise use commercially reasonable efforts to comply 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 CommissionCommission with respect to the disposition of all securities covered by such registration statement, and make available to Selling Holdersits security holders, as promptly 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 day of the Company’s first full quarter calendar month after the effective date of such registration statementSEC Effective Date, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct.
(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;
(xiii) 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 best efforts to cause all the Registrable Securities covered by the Registration Statement to be listed or quoted on the principal securities market on which securities of the same class or series issued by the Company are then listed or traded;
(l) provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times;
(m) cooperate with the sellers and Holders of Registrable Securities being offered pursuant to the managing underwriter Registration Statement to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities sold under any registration statement, Registrable Securities to be offered pursuant to the Registration Statement and enable such securities certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRArequest; and
(xvin) otherwise use commercially take all other reasonable efforts actions necessary to comply with all applicable rules expedite and regulations facilitate disposition by the Holders of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionRegistration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Internet America Inc), Registration Rights Agreement (Internet America Inc)
Registration Procedures. (a) If and whenever the Company Issuer is required to use its commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 2.1 and 3.22.2, the Company shall as promptly as practicable (in each case, to the extent applicable):Issuer shall:
(i) prepare and file (in the case of a Demand Registration, such filing to be made within 60 days after the initial request of Purchaser or in any event as soon after such 60 day period as possible) with the Commission a the requisite 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 Commission, and thereafter use its commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; effective, provided, however, that Issuer may postpone the Company filing or effectiveness of any registration statement otherwise required to be filed by Issuer pursuant to this Agreement or suspend the use of any registration statement for a period of time, not to exceed 90 days in any 12-month period, if Issuer determines that the filing or continued use of such registration statement would require Issuer to disclose a material financing, acquisition or other corporate development of Issuer or any of its affiliates and Issuer shall have determined that such disclosure is not in the best interests of Issuer (any such determination to be made by resolution of the Board of Directors of Issuer or a committee thereof); provided, further, that Issuer may discontinue any registration of its securities which are not Registrable Securities (and, under the circumstances specified in Section 2.2, 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) subject to Section 2.1(d), prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of (A) such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (iB) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 90 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder Purchaser 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder and underwriter, if any, Purchaser may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerSecurities;
(iv) use its commercially reasonable efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder Purchaser 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 or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling HolderSecurities, except that the Company Issuer shall not for any such purpose be required to qualify generally to do business as a foreign corporation or dealer in any jurisdiction wherein it would not but for the requirements of this clause subdivision (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction, to conform its capitalization or the composition of its assets at the time to the securities or blue sky laws of such jurisdiction or to file a general consent to general service of process in any such jurisdiction;
(v) use commercially reasonable efforts furnish to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed andunderwriter, if no an underwritten offering, customary "cold comfort" letters from its independent auditors, legal opinions from counsel to Issuer on customary matters, and such securities are so listed, use commercially reasonable efforts to cause other certificates or other instruments reasonably requested by such Registrable Securities to be listed on the New York Stock Exchange or the Nasdaq Stock Marketunderwriters;
(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 in writing each Selling Holder Purchaser and the managing underwriter or underwriters, if any, of the following eventspromptly and confirm such advice in writing promptly thereafter:
(1A) the filing of when the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement has been filed, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) of any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4D) when if at any time the representations and warranties of Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statementmade as contemplated by Section 2.4 below cease to be true and correct; and
(5E) of the receipt by the Company Issuer of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ixvii) notify each Selling HolderPurchaser, at any time when a prospectus relating thereto to a registration statement is required to be delivered under the Securities Act, upon Issuer's 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 misleadingmisleading in the light of the circumstances under which they were made, and, at the request of any Selling Holder, promptly and as soon as practicable prepare and furnish to such seller Purchaser and each underwriter, if any, 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 Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(xviii) 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;
(ix) cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange, if any, on which the same securities issued by Issuer are then listed, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify;
(x) cooperate with Purchaser and each underwriter participating in the disposition of such registration statementRegistrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. ("NASD");
(xi) during the period when a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange act; and
(xii) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement covering the period of at least 12 twelve months, but not more than 18 eighteen months, beginning with the first day of the Company’s Issuer's first full calendar quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers . Issuer may require Purchaser to furnish Issuer such information regarding Purchaser and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling distribution of the Registrable Securities;
(xiv) if requested by Securities as Issuer may from time to time reasonably request in writing. Issuer will not file any Selling Holders registration statement under Section 2.1 or amendment thereto or any underwriter, promptly incorporate in the registration statement prospectus or any prospectussupplement thereto (excluding documents incorporated by reference which constitute required reports under the Exchange Act) to which Purchaser shall reasonably object, pursuant provided that Issuer may file such document in a form required by law or upon the advice of its counsel. At least one day prior to a supplement or post-effective amendment if necessaryany disposition of Registrable Securities by Purchaser, Purchaser will orally advise Issuer of the dates on which such disposition is expected to commence and terminate, the number of Registrable Securities expected to be sold, the method of disposition and such other information as such Selling Holders Issuer may reasonably request in order to have included therein, including, without limitation, information relating to supplement the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist prospectus contained in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken registration statement in accordance with the rules and regulations of the FINRA; and
Commission. Promptly after receiving such advice, Issuer will, if necessary, (xvii) otherwise use commercially reasonable efforts prepare a supplement to comply such prospectus based upon such advice and file the same with all applicable rules and regulations of the Commission and all reporting requirements pursuant to Rule 424(b) under the rules Securities Act and regulations of (ii) if necessary, qualify the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, Registrable Securities to furnish be sold under the Company in writing such information regarding each Selling Holder securities or underwriter and the distribution blue sky laws of such Registrable Securities jurisdictions in the United States as the Company may from time to time Purchaser shall reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in the 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 subject to the underwriter, if any (or, if no underwriter, the sellers proviso of such Registrable SecuritiesSection 2.3(iv), unlegended certificates representing ownership ). Purchaser agrees by acquisition of the Registrable Securities being sold (unlessthat, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company Issuer of the happening occurrence of any event of the kind described in subdivisions (vi) or (vii) of this Section 3.6(a)(ix)2.3, such Selling Holder shall Purchaser will forthwith discontinue such Selling Holder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto to such Registrable Securities until such Selling Holder’s Purchaser's receipt of the copies of the supplemented or amended prospectus contemplated by subdivisions (vi) or (vii) of this Section 3.6(a)(ix) 2.3 and, if so directed by the CompanyIssuer, will deliver to the Company, Issuer (at the Company’s Issuer's reasonable expense, ) all copies, other than permanent file copies, then in such Selling Holder’s Purchaser's possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice relating to such Registrable Securities. In the event the Company shall give such notice, 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 1 contract
Registration Procedures. (a) If and whenever the Company PEC is required to use commercially reasonable efforts to effect the registration of any Registrable Securities Warrant Shares under the Securities Act as provided in Sections 3.1 and 3.2Section 4.1 or Section 4.2, the Company shall as promptly as practicable (in each case, to the extent applicable):PEC will promptly:
(ia) prepare and (in any event within sixty (60) days) file with the Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Warrant Shares and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; providedbecome effective, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments theretoto comply as to form and content in all material respects with the Commission's forms, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, rules and such review to be conducted with reasonable promptnessregulations;
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein 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 Warrant Shares and other securities covered by such registration statement until the earlier of (i) such time as all of such Warrant Shares and other securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (iii) the expiration of (A) twelve (12) months in the case of a Demand Registration registration of Warrant Shares pursuant to Section 3.14.1 hereof, or (B) three (3) months in the expiration case of 60 days a registration of Warrant Shares pursuant to Section 4.2 hereof, after such registration statement becomes effective, and will furnish to each such seller prior to the filing thereof a copy of any amendment or (ii) in the case of a Piggyback Registration pursuant supplement to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveor prospectus and shall not file any such amendment or supplement to which any such seller shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(iiic) promptly furnish to each Selling Holder seller of Warrant Shares one originally executed registration statement, with all amendments, supplements and each underwriter, if any, of the securities being sold by such Selling Holder additional documentation; such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), ) as such seller may reasonably request; such number of copies of the prospectus contained included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under as required by the Securities ActAct as such seller may reasonably request; such documents, if any, incorporated by reference in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus such registration statement or prospectus; and such other documents as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerrequest;
(ive) use commercially reasonable efforts to register or qualify such Registrable Securities immediately notify each seller of Warrant Shares 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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 misleadingmisleading in light of the circumstances then existing, andor if it is necessary to amend or supplement such prospectus or registration statement to comply with law, and at the request of any Selling Holdersuch 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 Registrable SecuritiesWarrant 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 statement therein not misleadingmisleading in light of the circumstances then existing and shall otherwise comply in all material respects with the law and so that such prospectus or registration statement, as amended or supplemented, will comply with law;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xif) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holdersits securities holders, as promptly soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, twelve (12) months beginning with the first day month of the Company’s first full fiscal quarter after the effective date of such registration statement, which if such earnings statement shall is necessary to satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiig) cooperate with the sellers provide and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities cause to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s maintained a transfer agent prior to and registrar for all Warrant Shares covered by such registration statement from and after a date not later than the effectiveness effective date of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAstatement; and
(xvih) otherwise use commercially reasonable its best efforts to comply with list all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required Common Stock covered by such registration statement.
(b) Without limiting statement on each securities exchange on which any of the foregoingCommon Stock is then listed or quote all such Common Stock on NASDAQ if PEC's Common Stock is quoted on NASDAQ, in the 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 underwriterPEC's Common Stock is not then quoted on NASDAQ or listed on any national securities exchange, the sellers of use its best efforts to have such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, Common Stock covered by such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, deliver to the Companyquoted on NASDAQ or, at the Company’s expenseoption of PEC, 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 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 the date of giving of listed on a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionnational securities exchange.
Appears in 1 contract
Sources: Registration Rights Agreement (Patterson Energy Inc)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to effect a registration of Registrable Securities:
(a) The Company will use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission SEC, within the time periods specified herein, a Registration Statement, which may be on Form S-3 or its equivalent to the extent available (or on such other registration statement form available to effect such registrationthe Company that permits the greatest extent of incorporation by reference of materials filed by the Company, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the CommissionExchange Act), and thereafter 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 such Registration Statement becomes effective, in the terms case of this Agreement; providedregistrations pursuant to Section 2, howeveror (2) 90 days after such Registration Statement becomes effective, that in the Company case of registrations pursuant to Section 3, in every case as any such period may discontinue any registration of its securities which are not Registrable Securities at any time prior be extended pursuant to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement subsection (h) or any amendments thereto, the Section 8.
(b) The Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement Registration Statement effective and for such period of time required by subsection (a), as such period may be extended pursuant to 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 until Registration Statement during the earlier of period during which any such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant Statement is required to Section 3.1, the expiration of 60 days after such registration statement becomes be effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;.
(iiid) The Company will furnish to each Selling any Holder and each underwriter, if any, any underwriter 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 Registrable Securities (in each case including all exhibits), 1) such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus manually executed and any summary prospectusconformed copies) 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;of
(ive) The Company will use commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities laws or "blue sky sky" laws of such jurisdictions states of the United States and any other jurisdiction as any Selling Holder and or any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary requested by such Holder or advisable to enable such Selling Holder and underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that jurisdictions; but the Company shall not for any such purpose 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 would is not but for the requirements of this clause (iv) be obligated to be then so qualified, to subject itself to taxation in any such jurisdiction qualified or to file a general consent to service of process in any such jurisdiction;subject.
(vf) use The Company will use, as soon as practicable after the effectiveness of the Registration Statement, 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 Registration Statement to be registered with with, or approved by by, such other United States and Bermuda public, governmental agencies or authorities regulatory authorities, if any, as may be necessary to enable the Selling Holder(s) thereof to consummate required in connection with the disposition of such Registrable Securities;.
(viig) The Company will use commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement on any securities exchange (or if applicable, 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 Holder, confirm such notification in connection with an Underwritten Offeringwriting, 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) when 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related theretohas been filed with the SEC, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement and when a Registration Statement or any post-effective amendment theretothereto has been filed with and declared effective by the SEC, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) of the issuance by the Commission SEC of any stop order suspending or the effectiveness coming to its knowledge of the registration statement or the initiation of any proceedings by any Person for that purpose;
, (43) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
, (ix4) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under of the Securities Act, upon discovery that, or upon the happening occurrence of any event as which requires the making of any changes to a result of which, the Registration Statement or related prospectus included in so that such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at misleading (and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller each Holder a reasonable number of copies of a supplement to supplemented or an amendment of amended prospectus 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 therein, in light of the circumstances under which they are made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission), and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day (5) of the Company’s first full quarter after 's
(i) The Company will enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the effective date disposition of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Registrable Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) 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 making its management available to the “Plan of Distribution” of extent reasonably requested by the Registrable Securities;
(xv) cooperate and assist Holders to participate in any filings required marketing presentations to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and potential investors in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Agreementunderwritten offering), the Company shall furnish and in that regard, will deliver to the underwriter, if any (or, if no underwriter, Holders such documents and certificates as may be reasonably requested by the sellers Holders of such Registrable Securities), unlegended certificates representing ownership a majority of the Registrable Securities being sold (unlessor, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt case of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix)underwritten offering, such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant using commercially reasonable efforts to the applicable registration statement and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the Company, cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement, or if such letter cannot be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company, 's financial statements included or incorporated by reference in the 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 Selling Holder’s possession applicable standards of the prospectus current at the time American Institute of receipt of such notice relating Certified Public Accountants with respect to such Registrable Securities. In the event the Company shall give such notice, 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionRegistration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Global Markets Access LTD)
Registration Procedures. (a) If and whenever In the case of each registration, offering, qualification, or compliance effected by the Company is required pursuant to Section 3(a), Section 3(b) or Section 3(c), 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, offering, qualification, and compliance and as to the completion thereof. In addition, the Company hereby agrees as follows:
(i) The Company will use its commercially reasonable efforts to effect cause the registration Shelf Registration Statement to become and remain effective at least for a period ending with the first to occur of any (A) the sale by the Holders of all Registrable Securities under covered by such Registration Statement, or (B) the Securities Act as provided in Sections 3.1 date that is three years after the SEC Effective Date of the Shelf Registration Statement; provided, however, that if the Company files the Shelf Registration Statement on Form S-1, subsequently becomes eligible to use Form S-3, and 3.2files a post-effective amendment to such Form S-1 on Form S-3 prior to the end of such period, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the 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 Commission, and thereafter will use its commercially reasonable efforts to cause such registration statement Shelf Registration Statement as amended to remain effective pursuant until the end of such period (in any such case, the “Effectiveness Period”).
(ii) If any Registration Statement becomes subject to review by the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments theretoSEC, the Company will furnish promptly respond to all comments and diligently pursue resolution of any comments to the counsel selected by satisfaction of the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;SEC.
(iiiii) The Company (A) will prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement each Shelf Registration Statement and the any prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be reasonably necessary to keep such registration statement Shelf Registration Statement effective during the applicable Effectiveness Period and to (B) will comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of Shelf Registration Statement during such time as all of such securities have been disposed of period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Shelf Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;Statement.
(iiiiv) furnish The Company will furnish, without charge, to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such (A) a reasonable number of conformed copies of such registration statement and of each Registration Statement (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto as such Holder may request, (in each case including all exhibits), B) such number of copies of the prospectus contained included in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act) as each Holder may request, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and (C) such other documents as such Selling each 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;Holder, but only during the applicable Effectiveness Period.
(ivv) The Company will use its commercially reasonable efforts to register or qualify such the Registrable Securities covered by such registration statement under such other the applicable securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter the Holders of a majority of the securities being sold Registrable Securities reasonably requests as may be necessary for the marketability of the Registrable Securities (such request to be made by such Selling Holder shall reasonably request, the time the relevant Registration Statement is deemed effective by the SEC) and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holderthe Holders; provided, except however, 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 where it would not otherwise be required to qualify but for the requirements of this clause paragraph (ivv), (B) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general (C) consent to general 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 promptly as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition practicable after becoming aware 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 jurisdictionevent, 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 will notify 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 being offered or sold pursuant to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, Registration Statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event which comes to the Company’s attention if as a result of which, such event the prospectus included in such registration statement, as then in effect, includes Registration Statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller a reasonable number of copies of Holder a supplement or amendment to or an amendment of such prospectus as may be necessary (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;, 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.
(xvii) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts The Company will comply, and continue to comply during the period that each 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 CommissionSEC with respect to the disposition of all securities covered by such 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 each Registration Statement of the issuance by the SEC of any stop order or other suspension of effectiveness of such Registration Statement.
(ix) The Company will permit the Holders of Registrable Securities being offered or sold pursuant to each Registration Statement and their legal counsel, at such Holders’ sole cost and expense, to review and have a reasonable opportunity to comment on such Registration Statement and all amendments and supplements thereto (unless such Registration Statement, amendments and supplements are filed without inclusion of any Registrable Securities therein) at least two (2) Business Days prior to their filing with the SEC.
(x) The Company will make available for inspection by the Holders and any Inspector retained by the Holders, at the Holders’ sole expense, all records as shall be reasonably necessary to enable the Holders and any underwriters to exercise their due diligence responsibility, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of cause the Company’s first full quarter after officers, directors, and employees to supply all information which the effective date Holders, any Inspector or any underwriter may reasonably request for purposes of such registration statementdue diligence; provided, however, that the Holders shall hold in confidence and shall not make any disclosure of any information which the Company determines in good faith to be confidential, and of which determination the Holders are so notified at the time the Holders receive such information, unless (A) the Holders have, or obtained, knowledge of such information without violation of or protection under any agreements with the Company or, to its knowledge any third party, (B) the disclosure of such information is reasonably necessary to avoid or correct a misstatement or omission in each Registration Statement and a reasonable time prior to such disclosure the Holders 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, (C) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (D) the information 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 to any Holder, Inspector or underwriter until and unless such Holder, Inspector or underwriter shall have entered into a confidentiality agreement with the Company with respect thereto, containing terms substantially similar to those set forth in this Section 3(d)(x), which earnings statement agreement shall satisfy permit an Inspector retained by any Holder to disclose information to such Holder. Each Holder agrees that it shall, upon learning that disclosure of such information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the provisions 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 information deemed confidential. The Company shall hold in confidence and shall not make any disclosure of Section 11(ainformation concerning the Holders provided to the Company pursuant to this Agreement unless (1) disclosure of such information is reasonably necessary to comply with federal or state securities laws, (2) 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 such Registration Statement, (3) disclosure of such information is reasonably necessary to avoid or correct a misstatement or omission in such Registration Statement, (4) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (5) 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 the Holders is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Holders and allow the Holders, at the Holders’ expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(xi) The Company will use its commercially reasonable efforts to cause all the Registrable Securities Act and Rule 158 thereunder;covered by each Registration Statement to be listed or quoted on the principal securities market on which securities of the same class or series issued by the Company are then listed or traded.
(xii) The Company will provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times.
(xiii) The Company will cooperate with the sellers and the managing underwriter Holders of Registrable Securities being offered pursuant to each Registration Statement to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities sold under any registration statement, Registrable Securities to be offered pursuant to such Registration Statement and enable such securities certificates to be in such denominations and registered in such names or amounts as the managing underwriter or such sellers 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 as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;request.
(xiv) if requested The Company will take all other reasonable actions necessary to expedite and facilitate disposition by any Selling the 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;Securities pursuant to each Registration Statement, including without limitation making its chief executive officer, president, chief financial officer and other appropriate officers and personnel available to participate in marketing efforts with respect to any registered underwritten public offering.
(xv) cooperate and assist in In the case of an underwritten offering, the Company shall furnish to the participating Holders signed counterparts, addressed to such Holders, of (i) any filings required opinion of counsel to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by Company delivered to any underwriter and (ii) any comfort letter from the Company’s independent public accountants (or accountants for any entity acquired by the Company whose financial statements are included in a Registration Statement) delivered to any underwriter. In the event no legal opinion is delivered to any underwriter, or in non-underwritten transactions, the Company shall furnish to participating Holders, at any time that such Holders elect to use a prospectus, an opinion of counsel to the Company stating only that the Registration Statement containing such prospectus has been declared effective and that no stop order is required to be undertaken in accordance with the rules and regulations of the FINRA; andeffect.
(xvi) otherwise use commercially reasonable efforts to The Company shall comply with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter SEC and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementAct.
(b) Without limiting any of the foregoing, in the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 1 contract
Sources: Registration Rights Agreement (Hall of Fame Resort & Entertainment Co)
Registration Procedures. (a) If and whenever In the case of each registration, qualification, or compliance effected by the Company is required pursuant to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 3 hereof, the Company shall will keep each Holder including securities therein reasonably advised in writing as promptly as practicable (in each case, to the extent applicable):initiation of each registration, qualification, and compliance and as to the completion thereof. At its expense with respect to any registration statement filed pursuant to Section 3, the Company will use its commercially reasonable best efforts to:
(ia) prepare and file with the Commission with respect to such Registrable Securities, a registration statement to effect such registrationon any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, cause such registration statement to become effective at and which form shall be available for the earliest possible date permitted under the rules and regulations sale of the CommissionRegistrable Securities in accordance with the intended method(s) of distribution thereof, and thereafter use commercially reasonable its commercial efforts to cause such registration statement to become and remain effective at least for a period ending with the first to occur of (i) the sale of all Registrable Securities covered by the registration statement, (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 Section 3(a) is declared effective by the terms Commission (in either case, the "EFFECTIVENESS PERIOD"); PROVIDED, HOWEVER, if at the end of this Agreementsuch one-year period, any Holder is not able to immediately, freely resell all Registrable Securities that it owns, the Effectiveness Period shall continue until terminated pursuant to clause (i) or (ii); providedprovided that no later than five business days before filing with the Commission a registration statement or prospectus or any amendments or supplements thereto, howeverincluding documents incorporated by reference after the initial filing of any registration statement, that the Company may discontinue any registration shall (i) furnish to one counsel ("HOLDERS COUNSEL") selected by the Holders of its securities which are not a majority of the Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing covered by 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 (“Selling Holders”) copies of all such documents proposed to be filed (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed, which documents will shall be subject to the review of such counsel, and (ii) notify each Holder of Registrable Securities covered by such review registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to be conducted with reasonable promptnessprevent the entry of such stop order or to remove it if entered;
(iib) if a registration statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;
(c) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective during the Effectiveness Period (but in any event at least until expiration of the 90-day period referred to in Section 4(3) of the Securities Act and to Rule 174, or any successor thereto, thereunder, if applicable), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement;
(d) furnish, without charge, to each Holder of Registrable Securities covered by such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or one (ii1) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies signed copy of such registration statement and of (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto thereto, (ii) two (2) conformed copies of each such registration statement, amendment and supplement (in each case including all exhibitsexhibits thereto), (iii) such number of copies of the prospectus contained 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) as such Holders may request, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and (iv) 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 sellerHolder, but only during the Effectiveness Period;
(ive) use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other applicable securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of Registrable Securities covered by such registration statement reasonably requests as may be necessary for the marketability of the securities being sold Registrable Securities (such request to be made by such Selling Holder shall reasonably request, the time the applicable registration statement is deemed effective by the Commission) and take do any and all other action acts and things 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 ; PROVIDED that the Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause paragraph (ive), (ii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general (iii) consent to general service of process in any such jurisdiction;
(vf) use commercially reasonable efforts to cause immediately notify each Holder of 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon Act of the happening of any event which comes to the Company's attention if as a result of which, such event the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading and the request of any Selling Holder, Company shall promptly prepare and furnish to such seller a reasonable number of copies of Holder a supplement or amendment to or an amendment of such prospectus as may be necessary (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, unless suspension of the use of such prospectus otherwise is authorized herein or in the event of an S-3 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-3 Blackout Period;
(xg) make every reasonable effort comply, and continue to obtain comply during the withdrawal of any order suspending the effectiveness of period that such registration statement;
(xi) otherwise use commercially reasonable efforts to comply 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 CommissionCommission with respect to the disposition of all securities covered by such registration statement, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement covering the period of at least 12 twelve (12) months, but not more than 18 eighteen (18) months, beginning with the first day of the Company’s first full quarter 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 and Rule 158 thereunderAct.
(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;
(xiii) 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 three Business Days prior to their filing with the Commission and shall not file any such document to which any Holder reasonably objects;
(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 an 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 is necessary to avoid or correct a misstatement or omission in the Registration Statement, (iii) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this 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 best efforts to cause all the Registrable Securities covered by the Registration Statement to be quoted on the Nasdaq National Market or such other principal securities market on which securities of the same class or series issued by the Company are then listed or traded;
(l) provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times;
(m) cooperate with the sellers and Holders of Registrable Securities being offered pursuant to the managing underwriter Registration Statement to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable law), if necessary or appropriate, legends) representing securities sold under any registration statement, Registrable Securities to be offered pursuant to the Registration Statement and enable such securities certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the managing underwriter or such sellers 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 as necessary or appropriaterequest;
(xiiin) have appropriate officers during the Registration 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 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 Holders to cooperate as reasonably requested sell Registrable Securities by the Selling Holders and the underwriters in the offering, marketing or selling reason of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate limitations set forth in Regulation M under the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA1934 Act; and
(xvio) otherwise use commercially take all other reasonable efforts actions necessary to comply with all applicable rules expedite and regulations facilitate disposition by the Holders of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the CommissionRegistration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Factory 2 U Stores Inc)
Registration Procedures. (a) If and whenever Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company is required to will use commercially reasonable efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Sections 3.1 and 3.2intended method of disposition thereof. Pursuant to such registration, the Company shall will as promptly expeditiously as possible:
(a) as soon as practicable (but in each caseany event within 60 days of a request for registration of Registrable Securities, to the extent applicable):
(i) prepare and file with the Commission a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use commercially its reasonable efforts to cause such registration statement to remain become effective pursuant to the terms of this Agreement; provided(provided that, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such a registration statement or prospectus or any amendments or supplements thereto, if requested the Company will furnish furnish, to the counsel selected by the holders of a majority of the Registrable Securities which are to be included in covered by such registration (“Selling Holders”) statement, copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness);
(iib) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and for a period of either (i) 90 days (subject to comply extension pursuant to the last paragraph of this Section 2.4) or, if such registration statement relates to an underwritten offering, such period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with the provisions sales of Registrable Securities by an underwriter or dealer, or (ii) such shorter period as will terminate when all of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) but in the case of a Demand Registration pursuant to Section 3.1, any event not before the expiration of 60 days after any longer period required 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 becomes effective, or (ii) during such period in accordance with the case intended methods of a Piggyback Registration pursuant to Section 3.2, disposition by the expiration of 60 days after sellers thereof set forth in such registration statement becomes effectivestatement;
(iiic) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Registrable Securities such number of conformed copies of such registration statement and of statement, each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained 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 any Issuer Free Writing Prospectus Act and such other documents as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(ivd) if required, use commercially its 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 seller or underwriter reasonably requests and do any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except seller (provided that the Company shall will not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause subparagraph, (ivii) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general (iii) consent to general service of process in any such jurisdiction);
(ve) use commercially reasonable efforts furnish to each seller of Registrable Securities a signed counterpart, addressed to such seller (and the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller and
(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 the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering 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 and, in the case of 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;
(f) notify each seller of such Registrable Securities (at any time when a prospectus relating thereto is required to be delivered under the Securities Act) of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any underwriter or any such seller, prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(g) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if 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;
(vih) use commercially reasonable efforts to cause enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities covered by such registration statement being sold or the underwriters, if any, reasonably request in order to be registered with expedite or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate facilitate the disposition of such Registrable Securities;
(viii) 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 sellerseller of Registrable Securities, any underwriter participating in any disposition pursuant to any such registration statement, statement and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”)underwriter, all relevant 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 responsibilityCompany, and use reasonable efforts to cause the Company’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such Inspector seller, underwriter, attorney, accountant or agent 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xij) otherwise use commercially its reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event that the offering Each holder of Registrable Securities is to be made by or through an underwriteragrees that, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix)2.4(f) above, such Selling Holder shall holder will forthwith discontinue such Selling Holderholder’s disposition distribution of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto to such Registrable Securities until such Selling Holderholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix2.4(f) and, if so directed by the 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 Securitiesabove. In the event the Company shall give any such notice, any the applicable 60-day time period mentioned in Section 2.4(b) above during which such registration statement must a Registration Statement is to 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 a such notice regarding the happening of an event of the kind described in pursuant to Section 3.6(a)(ix2.4(f) above, to and including the date when all each seller of a Registrable Security covered by such Selling Holders registration statement shall receive such a have received the copies of the supplemented or amended prospectus and such prospectus shall have been filed with the Commissioncontemplated by Section 2.4(f) above.
Appears in 1 contract
Sources: Registration Rights Agreement (Real Goods Solar, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2Section 3.1, the Company shall as promptly as practicable (in each case, to the extent applicable):will promptly:
(i) as soon as practicable, prepare and file with the Commission SEC a registration statement with respect to effect such registrationsecurities, cause such registration statement to become effective at make all required filings with the earliest possible date permitted under the rules NASD and regulations of the Commission, and thereafter use commercially reasonable best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessbecome effective;
(ii) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein such other documents 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 securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) statement, but in the case no event for a period of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days more than six months after such registration statement becomes effective;
(iii) furnish to each Selling Holder and each underwriter, counsel (if any, ) selected by the holders of a majority (by number of shares) of the securities being sold Registrable Securities covered by such Selling Holder registration statement and to counsel for the underwriters in any underwritten offering copies of all documents proposed to be filed with the SEC (including all documents to be filed on a confidential basis) in connection with such registration;
(iv) 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 case, including all exhibitsexhibits and documents filed therewith (other than those filed on a confidential basis), except that the Company shall not be obligated to furnish any seller of securities with more than two copies of such exhibits and documents), such number of copies of the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities securities owned by such seller;
(ivv) use commercially reasonable its best efforts to register or qualify such Registrable Securities the 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 each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Holderseller, 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 is not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction wherein it is not so subject, or take any action which would subject it to file a general consent to service of process in any such jurisdictionjurisdiction wherein it is not so subject;
(vA) notify each seller of any securities covered by such - registration statement if such registration statement, at the time it or any amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable, prepare and file with the SEC a post-effective amendment to such registration statement and use commercially reasonable best efforts to cause such Registrable Securities 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 listed on stated therein or necessary to make the statements therein not misleading, and (B) - notify 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 holder of 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, if the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at the request of any Selling Holderas promptly as is practicable, promptly prepare and furnish to such seller 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 Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xivii) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits security holders, as promptly 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 day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy Company complying with the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderunder the Securities Act;
(xiiviii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery notify each seller of certificates any securities covered by such registration statement (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any A) when such registration statement, and enable or any post- - effective amendment to such securities to be in such denominations and registered in such names as the managing underwriter registration statement, shall have become effective, or such sellers may request and keep available and make available any amendment of or supplement to the Company’s transfer agent prior prospectus used in connection therewith shall have been filed, (B) of any request by the SEC - to amend such registration statement or to amend or supplement such prospectus or for additional information, (C) of the issuance by the SEC of - any stop order suspending the effectiveness of such registration statement a supply or of any order preventing or suspending the use of any preliminary prospectus, and (D) of the suspension of the qualification of such certificates as necessary securities for offering or appropriatesale in any jurisdiction, or of the institution of any proceedings for any of such purposes;
(xiiiix) 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 (A) (1) to cooperate as reasonably requested list such securities on any - - securities exchange on which the Common Stock is then listed or, if no Common Stock is then listed, on an exchange selected by the Selling Holders Company, if such listing is then permitted under the rules of such exchange or (2) if - such listing is not practicable or the Board determines that quotation as a NASDAQ National Market System security is preferable, to secure designation of such securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure NASDAQ authorization for such securities, and, without limiting the foregoing, to arrange for at least two market makers to register as such with respect to such securities with the NASD, (B) to provide a transfer - agent and registrar for such Registrable Securities not later than the underwriters in the offering, marketing or selling effective date of such registration statement and (C) to obtain a CUSIP - number for the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvix) otherwise use commercially every reasonable efforts effort to comply with all applicable rules and regulations obtain the lifting of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of 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 the event stop order 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 might be issued in uncertificated form pursuant to suspending the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar effectiveness of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by or of any order preventing or suspending the number use of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commissionany preliminary prospectus.
Appears in 1 contract
Sources: Piggyback Registration Rights Agreement (Dynatech Corp)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect or cause the registration of any Registrable Securities securities under the Securities Act as provided in Sections 3.1 and 3.2this Agreement, the Company shall will, as promptly expeditiously as practicable possible:
(a) prepare and, in each case, any event within 120 days after the end of the period within which a request for registration may be given to the extent applicable):
(i) prepare and Company, file with the Commission SEC a registration statement with respect to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules Registrable Securities and regulations of the Commission, and thereafter use commercially reasonable its best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreementbecome effective; provided, however, that the Company company may discontinue any registration of its securities which are not Registrable Securities is being effected pursuant to Section 3 hereof 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 (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(iib) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period of at least 10 days, but not in excess of 180 days and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of during such time as all of such securities have been disposed of period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, that before filing a registration statement or (i) in prospectus, or any amendments or supplements thereto, the case Company will furnish to one counsel selected by the Holders of a Demand Registration pursuant to Section 3.1, majority of the expiration of 60 days after Registrable Securities covered by such registration statement becomes effective, or (ii) in the case to represent all Holders of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after Registrable Securities covered by such registration statement becomes effectivestatement, copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iiic) furnish to each Selling Holder and each underwriter, if any, seller of the securities being sold by such Selling Holder Registrable Securities 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 included in such registration statement (including each preliminary form of 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, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller;
(ivd) use commercially reasonable its 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 each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holderseller, 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 where, but for the requirements of this clause (iv) d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction jurisdiction, or to file a general consent to general service of process in any such jurisdiction;
(ve) use commercially reasonable its best efforts to cause such Registrable Securities to be listed on each registrable 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) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify 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 seller 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 Registrable Securities covered 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in clause (b) of this Section 5, upon discovery that, or upon of the happening of any event as a result of which, Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of any Selling Holdersuch seller, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to an amended or an amendment of such supplemented 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 herein not misleadingmisleading in the light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xig) otherwise use commercially reasonable its best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling Holdersits security holders, as promptly soon as practicable, an earnings statement covering the period of at least 12 months, reasonably practicable (but not more than 18 eighteen months, beginning with the first day of the Company’s first full quarter ) after the effective date of such the registration statement, which an earnings statement which shall satisfy the provisions of Section section 11(a) of the Securities Act and Rule 158 the rules and regulations promulgated thereunder;
(xiih) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use 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. The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of list such Registrable Securities as on any securities exchange on which 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 the event that the offering of Registrable Securities Common Stock 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 underwriterthen listed, 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 not already so listed and if such listing is then permitted under the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 rules of such notice relating to such Registrable Securities. In the event the Company shall give such noticeexchange, 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.to
Appears in 1 contract
Sources: Registration Rights Agreement (Ansys Diagnostics Inc)
Registration Procedures. With respect to any Demand Registration or Piggyback Registration (a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 and 3.2each, a "Registration"), the Company shall shall, subject to Sections 5(a)(i) and (5)(a)(ii) and Sections 5(b)(i) and 5(b)(ii), as promptly expeditiously as practicable (in each case, to the extent applicable):practicable:
(i) prepare and file with the Commission Commission, as promptly as reasonably practicable (but in no event more than forty-five (45) days) after the receipt of the Registration requests under Sections 5(a) or 5(b), a registration statement or registration statements (each, a "Registration Statement") relating to effect such registration, cause such registration statement to become effective at the earliest possible date permitted applicable Registration on any appropriate form under the rules and regulations Securities Act, which form shall be available for the sale of the Commission, Registrable Securities in accordance with the intended method or methods of distribution thereof; cooperate and thereafter assist in any filings required to be made with the NASD; and use commercially its reasonable best efforts to cause such registration statement Registration Statement to remain effective pursuant become and (to the terms of this Agreementextent provided herein) remain effective; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement a Registration Statement or prospectus related thereto (a "Prospectus") or any amendments or supplements thereto, the Company will shall furnish to the counsel selected by the holders of the Registrable Securities which are to be included in covered by such registration (“Selling Holders”) Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters and their respective counsel, and the Company shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such review to be conducted with reasonable promptnessRegistration Statement or the underwriters, if any, shall reasonably object;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein Registration Statement as may be necessary to keep each Registration Statement effective for three (3) months (six (6) months in the case of any shelf registration requested by a Qualified Holder pursuant to this Section 5) or such registration statement effective shorter period that will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause each Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until Registration Statement during the earlier of such time as all of such securities have been disposed of applicable period in accordance with the intended method or methods of disposition distribution by the seller or sellers thereof set forth in such registration statement Registration Statement or (i) in supplement to the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effectiveProspectus;
(iii) promptly notify the selling holders of Registrable Securities and the managing underwriters, if any (and, if requested by any such person or entity, confirm such advice in writing), (A) 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; (B) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information; (C) 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; (D) if at any time the representations and warranties of the Company contemplated by subsection (xiv) of this subsection (d) below cease to be true and correct; (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (F) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(iv) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of (I) the Registration Statement, or (II) the qualification of the Registrable Securities for sale under the securities or blue sky laws of any jurisdiction at the earliest possible time;
(v) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vi) furnish to each Selling Holder selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(vii) deliver to each selling holder of Registrable Securities and the underwriters, 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)without charge, such number of as many copies of the prospectus contained in such registration statement Prospectus (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 amendment or supplement thereto as such Selling Holder and underwriter, if any, selling holder of Registrable Securities underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities securities owned by such sellerselling holder;
(ivviii) prior to any public offering of Registrable Securities, use commercially its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the Registration or qualification of such Registrable Securities covered by such registration statement for offer and sale under such other the securities laws or "blue sky sky" laws of such jurisdictions in the United States as any Selling Holder seller or underwriter reasonably requests in writing, use its reasonable best efforts to obtain all appropriate registrations, permits and any underwriter of the securities being sold by such Selling Holder shall reasonably requestconsents required in connection therewith, and take do any and all other action which may be acts or things reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such Selling Holderthe Registration Statement; provided, except however, that the Company shall will not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein where it is not then so qualified or to take any action that would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself it to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject;
(vix) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and 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;
(x) use commercially its reasonable best efforts to cooperate with any selling holder to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(xi) upon the occurrence of any event contemplated by subsection (iii)(F) above, promptly prepare a supplement or post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(xii) cause all Registrable Securities covered by any Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed andlisted, or, if no such securities are not so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed authorized for trading on the New York Stock Exchange NASDAQ National Market System if any similar securities issued by the Company are then so authorized, if requested by the holders of a majority of such Registrable Securities or the Nasdaq Stock Marketmanaging underwriters, if any;
(vixiii) use commercially reasonable efforts to cause not later than the effective date of the applicable Registration, provide a CUSIP number for all Registrable Securities;
(xiv) enter into such Registrable Securities covered by such registration statement to be registered with or approved by customary agreements (including in the case of a Demand Registration that is an underwritten offering, an underwriting agreement in customary form) and take all such other governmental agencies actions reasonably required in connection therewith in order to expedite or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate facilitate the disposition of such Registrable Securities;
Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the Registration is an underwritten Registration, (viiA) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in connection with an Underwritten Offeringform, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings; (B) use reasonable best efforts to obtain for each Selling Holder and underwriter:
(1) an opinion opinions of counsel for to the CompanyCompany and updates thereof (which opinions of counsel shall be in form, scope and substance reasonably satisfactory to the managing underwriters, if any, and to the holders of a majority of the Registrable Securities being sold), addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder holders and underwriters; (C) use reasonable best efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, and
if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; and (2D) deliver such documents and certificates as may be reasonably requested by the holders of a “comfort” letter majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with subsection (or, xi) above and with any customary conditions contained 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 underwriting agreement or other agreement entered into by the independent registered public accountants who have certified Company. All the Company’s financial statements included above in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of this Section 5(d)(xiv) shall be done at each closing under each underwriting or similar agreement or as and to the Company or any business acquired by the Company from which financial statements and financial data are, or are extent required to be, included in the registration statement)thereunder;
(3xv) promptly make available for inspection by any sellera representative of each Demanding Stockholder, any underwriter participating in any disposition pursuant to any registration statementsuch Registration, and any attorney, attorney or accountant or other agent or representative retained by any such seller the sellers or underwriter (collectivelyunderwriter, the “Inspectors”), copies or extracts of all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary necessary, in the opinion of the holders' or underwriter's counsel, to enable them to exercise fulfill their due diligence responsibility, responsibilities; and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with such registration statementRegistration 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, that the Company shall not be required to provide comply with this paragraph (xv) unless such person executes confidentiality agreements whereby such person agrees that any records, information under this subparagraph (viii) if (i) or documents that are designated by the Company believesin writing as confidential shall be kept confidential by such Persons and used only in connection with the proposed Registration unless disclosure of such records, 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 documents is required by court or administrative order or 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 Companyregulatory body having jurisdiction; and provided, further, that each Holder seller of Registrable Securities agrees that it will, upon learning that disclosure of such Records records, information or documents is sought in a court of competent jurisdictionjurisdiction or by a governmental agency, give notice to the Company and allow the Company, at its the Company's expense, to undertake appropriate action and to prevent disclosure of the Records any records, information or documents deemed confidential;
; provided further, however, notwithstanding any designation of confidentiality by the Company, confidential information shall not include information which (viiii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment becomes generally available to the registration statement andpublic other than as a result of a disclosure by or on behalf of any such Person, or (ii) becomes available to any such Person on a non-confidential basis from a source other than the Company or its advisors, provided that such source is not to such Person's knowledge bound by a confidentiality agreement with or other obligations of secrecy to the Company or another party with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional such information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, 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, and, at the request of any 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 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;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixvi) otherwise use commercially its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to Selling Holdersits security holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
Act, no later than forty-five (xii45) cooperate days after the end of any twelve (12) month period (or ninety (90) days, if such period is a fiscal year) (A) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (B) if not sold to underwriters in such an offering, beginning with the sellers and the managing underwriter to facilitate the timely preparation and delivery first month of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to 's first fiscal quarter commencing after the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers effective date of the Company prepare and make presentations at any “road shows” and before analysts and rating agenciesRegistration Statement, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
which statements shall cover said twelve (xiv12) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAmonth periods; and
(xvixvii) otherwise use commercially reasonable efforts promptly prior to comply with all applicable rules and regulations the filing of any document that is to be incorporated by reference into any Registration Statement or Prospectus (after initial filing of the Commission Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and all reporting requirements under to the rules managing underwriters, if any, make the Company's executive officers and regulations other representatives available for discussion of such document and make such changes in such document prior to the Exchange Actfiling thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each Selling Holder and each underwriter, if any, seller of Registrable Securities as to which any Registration is being effected to furnish to the Company in writing such information regarding each Selling Holder or underwriter and the proposed distribution of such Registrable Securities 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 the event that the offering writing. Each holder of Registrable Securities is to be made agrees 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 acquisition of such Registrable Securities)Securities that, unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix5(d)(xi), such Selling Holder holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Holder’s holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix5(d)(xi), 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 that are incorporated by reference in the Prospectus; and, if so directed by the Company, such holder shall deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, copies then in such Selling Holder’s possession seller's possession, of the prospectus Prospectus covering such Registrable Securities current at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event the Company shall give such notice, gives 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.such
Appears in 1 contract
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 3.1, 3.2 and 3.23.3, the Company shall as promptly expeditiously as practicable (in each case, to the extent applicable):reasonably possible:
(i) prepare and file with the Commission SEC 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 Commission, and thereafter use commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further further, that before filing such registration statement or any amendments thereto, the Company will furnish upon request to the counsel selected by the holders of Stockholders which are including Registrable Securities which are to be included in such registration (“Selling HoldersStockholders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission SEC such amendments (including post-post effective amendments), supplements (including prospectus supplements on a quarterly basis to update financial statements) and supplements “stickers” to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 90 days after such registration statement becomes effective, effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 90 days after such registration statement becomes effectiveeffective or (iii) in the case of a shelf registration pursuant to Section 3.3, the Shelf Registration Effectiveness Period;
(iii) furnish to each Selling Holder Stockholder and each underwriter, if any, of the securities being sold by such Selling Holder Stockholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibitsexhibits 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 any Issuer Free Writing Prospectus and such other documents as such Selling Holder Stockholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerSelling Stockholder;
(iv) use commercially 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 Stockholder and any underwriter of the securities being sold by such Selling Holder Stockholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder Stockholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling HolderStockholder, 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, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to service of process in any such jurisdiction;
(v) use commercially 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 Exchange, the NASDAQ Stock Market or the Nasdaq Stock Marketany other nationally recognized securities exchange;
(vi) use commercially 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(sStockholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder Stockholder and underwriter:
(1A) 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 Stockholder and underwriters, and
(2B) 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. 72AU 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 accountants of any subsidiary Subsidiary of the Company or any business acquired by the Company from for which financial statements and financial data are, or are required to be, included in the registration statement);
(3viii) promptly make available for inspection by any sellerSelling Stockholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller Selling Stockholder 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 SEC confidential treatment of such information contained in any filing with the Commission 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 Selling Stockholder 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 Selling Stockholder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viiiix) promptly notify in writing each Selling Holder Stockholder and the underwriters, if any, of the following events:
(1A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus thereto or post-effective amendment to the registration statement or any Issuer Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2B) any request by the Commission SEC or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(3C) the issuance by the Commission SEC or any other Governmental Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; and
(E) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement;
(ixx) notify each Selling HolderStockholder, 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, and, at the request of any Selling HolderStockholder, 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 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;
(xxi) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xixii) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to Selling HoldersStockholders, as promptly soon as reasonably practicable, an earnings statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiixiii) use its reasonable best efforts to assist Selling Stockholders who made a request to the Company to provide for a third party “market maker” for the shares of Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers Selling Stockholders and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers Selling Stockholders 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;
(xiiixv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders Stockholders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xivxvi) have appropriate officers of the Company, and cause representatives of the Company’s independent public accountants, to participate in any due diligence discussions reasonably requested by any Selling Stockholder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of the Company’s securities;
(xviii) if requested by any Selling Holders Stockholders 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 Stockholders may reasonably request to have included therein, including, without limitation, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xvxix) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and;
(xvixx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Stockholders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Stockholders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder Stockholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder Stockholder or underwriter and the distribution of 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 the 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 Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix), such 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 Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if so directed by the 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 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 the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
Appears in 1 contract
Sources: Registration Rights Agreement (FTAI Infrastructure Inc.)
Registration Procedures. (a) If and whenever the Company is required to use commercially reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 3.1 1.1, 1.2 and 3.22, the Company shall as promptly as practicable (in each case, to the extent applicable):shall:
(ia) prepare prepare, and as soon as practicable, but in any event within 75 days thereafter, file with the Commission Commission, a registration statement with respect to effect such registrationRegistrable Securities, make all required filings with the NASD and use its best efforts to cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptnessas soon as practicable;
(iib) prepare and promptly file with the Commission such amendments (including and post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and for so long as is required to comply with the provisions of the Securities Act with respect and to complete the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth thereof, but in such registration statement or (i) in the case no event for a period of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days more than six months after such registration statement becomes effective;
(c) furnish copies of all documents proposed to be filed with the Commission in connection with such registration to counsel selected by (i) CVC, in the case of a registration pursuant to Section 1.1, (ii) OTPP, in the case of a registration pursuant to Section 1.2, and (iii) the Majority Holders, in all other cases (which counsel may also be counsel to the Company), and such documents shall be subject to the review of such counsel, provided that 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 on the grounds that such registration statement amendment, supplement or prospectus 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 Selling Holder and each underwriterseller of Registrable Securities, if anywithout charge, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), exhibits and documents filed therewith) and such number of copies of the prospectus contained 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 any Issuer Free Writing Prospectus and such other documents documents, as such Selling Holder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerseller in accordance with the intended method or methods of disposition thereof;
(ive) use commercially reasonable its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other the 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 each seller shall reasonably request, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Holder and underwriter seller to consummate the disposition of such Registrable Securities in such jurisdictions in accordance with the intended method or methods of the Registrable Securities owned by such Selling Holderdisposition thereof, except 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 would is not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction wherein it is not so subject, or take any action which would subject it to file a general consent to service of process in any such jurisdictionjurisdiction wherein it is not so subject;
(vf) use commercially reasonable its 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 commercially reasonable efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies agencies, authorities or authorities self-regulatory bodies as may be necessary by virtue of the business and operations of the Company to enable the Selling Holder(s) seller or sellers thereof to consummate the disposition of such Registrable SecuritiesSecurities in accordance with the intended method or methods of disposition thereof;
(viig) furnish to CVC (unless the CVC Stockholders are not participating in connection with an Underwritten Offering, obtain for each Selling Holder the registration) and underwriter:OTPP (unless OTPP is not participating in the registration):
(1i) an opinion of counsel for the CompanyCompany experienced in securities law matters, covering dated 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 effective date 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 necessarysuch registration includes an underwritten public offering, any other independent registered public accountant of any subsidiary the date of the Company or any business acquired closing under the underwriting agreement), and
(ii) a "comfort" letter (unless the registration is pursuant to Section 2 and such a letter is not otherwise being furnished to the Company), dated the effective date of such registration statement (and if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the Company from which independent public accountants who have issued an audit report on the Company's financial statements and financial data are, or are required to be, 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 CVC and/or OTPP, as the case may be, may reasonably request;
(3h) 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 notify each 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 in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for covered by such purpose;
(ix) notify each Selling Holderregistration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon of the happening of any event or existence of any fact as a result of which, 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 misleadingmisleading in light of the circumstances then existing, and, at the request of any Selling Holderas promptly as is practicable, 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 Registrable Securitiessecurities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holdersits security holders, as promptly soon as reasonably practicable, an earnings statement of the Company (in form complying with the provisions of Rule 158 under the Securities Act) 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 month after the effective date of such registration statement;
(j) notify each seller of any Registrable Securities covered by such registration statement (i) when the prospectus or any prospectus supplement or post-effective amendment has been filed, which earnings and, with respect to such registration statement shall satisfy or any post-effective amendment, when the provisions same has become effective, (ii) of Section 11(aany request by the Commission for amendments or supplements to such registration statement or to amend or to supplement such prospectus or for additional information, (iii) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with issuance by the sellers and the managing underwriter to facilitate the timely preparation and delivery Commission of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to stop order suspending the effectiveness of such registration statement a supply or the initiation of any proceedings for that purpose and (iv) of the suspension of the qualification of such certificates as necessary securities for offering or appropriatesale in any jurisdiction, or of the institution of any proceedings for any of such purposes;
(xiiik) have appropriate officers use every reasonable effort to obtain the lifting of any stop order that might be issued suspending the effectiveness of such registration statement at the earliest possible moment;
(l) use its best efforts (i) (A) to list such Registrable Securities on any securities exchange on which the equity securities of the Company prepare and make presentations are then listed or, if 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 (B) 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 any “road shows” and before analysts and rating agencies, least two market makers to register as such with respect to such Registrable Securities with the case may beNASD, and otherwise use its reasonable best efforts (ii) to cooperate as reasonably provide a transfer agent and registrar for such Registrable Securities 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 Selling Holders and the underwriters in the offering, marketing or selling sellers of the Registrable SecuritiesSecurities or the lead underwriter;
(xivm) if requested by any Selling Holders enter into such agreements and take such other actions as the sellers of Registrable Securities 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 underwriters reasonably request in order to have included thereinexpedite or facilitate the disposition of such Registrable Securities, including, without limitation, information relating preparing for, and participating in, such number of "road shows" and all such other customary selling efforts as the underwriters reasonably request in order to the “Plan of Distribution” of the Registrable Securitiesexpedite or facilitate such disposition;
(xvn) cooperate furnish to any holder of such Registrable Securities such information and assist assistance as such holder may reasonably request in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any "due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRAdiligence" effort which such seller deems appropriate; and
(xvio) otherwise use commercially reasonable its best efforts to comply with take all applicable rules and regulations other steps necessary to effect the registration of such Registrable Securities contemplated hereby. As a condition to its registration of Registrable Securities of any prospective seller, the Commission and all reporting requirements under the rules and regulations of the Exchange Act. The Company may require each Selling Holder such seller of any Registrable Securities as to which any registration is being effected to execute powers-of-attorney, custody arrangements and each underwriter, if any, other customary agreements appropriate to facilitate the offering and to furnish to the Company in writing such information regarding each Selling Holder or underwriter such seller, its ownership of Registrable Securities and the distribution disposition of such Registrable Securities as the Company may from time to time reasonably request in writing and as shall be required by law in connection therewith. Each such holder agrees to complete or amend furnish promptly to the Company all information required to be disclosed in order to make the information required 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.
(b) Without limiting any of the foregoing, in the 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 statement with respect to offerings of common stock for the account ofany Registrable Securities, or on behalf ofany 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 issuersseller as the holder of any Registrable Securities, except as required by applicable law or as to which counsel to such seller may reasonably object. In connection with any offering By acquisition of Registrable Securities registered pursuant to this AgreementSecurities, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers each holder 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 shall be deemed to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees have agreed that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.6(a)(ix3(h), such Selling Holder shall forthwith holder will promptly discontinue such Selling Holder’s holder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Holder’s holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(a)(ix) and, if 3(h). If so directed by the Company, each holder of Registrable Securities will deliver to the Company, Company (at the Company’s 's expense, ) all copies, other than permanent file copies, then in such Selling Holder’s holder's possession of the prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event that the Company shall give any such notice, any applicable 60-day the period during which such registration statement must remain effective pursuant to this Agreement mentioned in Section 3(a) shall be extended by the number of days during the period from and including the date of the giving of a such notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to and including the date when all each seller of any Registrable Securities covered by such Selling Holders registration statement shall receive such a have received the copies of the supplemented or amended prospectus and such prospectus shall have been filed with the Commissioncontemplated by Section 3(h).
Appears in 1 contract