Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible: (i) prepare and file with the SEC a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders; (ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V; (iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder; (iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction; (v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market; (vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities; (vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter: (A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and (B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement; (viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company; (ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events: (A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information; (C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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; (xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement; (xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares; (xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and (xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements. (c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC. (d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall: (i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act; (ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and (iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration. (e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 5 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Kinder Morgan, Inc.), Shareholder Agreement (Kinder Morgan, Inc.)
Registration Procedures. (a) If and whenever Upon receipt of a request for registration of Registrable Securities pursuant to SECTION 9(a), the Company is required to will thereupon use reasonable its best efforts to effect the registration of any the Registrable Securities under that are the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall subject of such request as expeditiously as reasonably possible, subject to the provisions of SECTION 9
(a) and in connection therewith:
(i) The Company will as expeditiously as possible prepare and file with the SEC Commission a registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to effect be registered thereunder in accordance with the intended method of distribution thereof; the Company will include in such registration statement all information that any holder of such Registrable Securities (collectively, the "Participating Holders") shall reasonably request for the purpose of conforming such registration statement to the requirements of applicable law or of correcting any material misstatement or omission therein; and thereafter the Company will use reasonable its best efforts to cause such filed 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 covered by such registration statement relating thereto; provided, further that within a reasonable time before are sold but not for more than 180 days.
(ii) Prior to filing such registration statement or any amendments thereto (including prospectuses amendment or supplements supplement thereto), the Company will furnish to the Participating Holders, their counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each managing underwriter, if any, of copies thereof, and thereafter furnish to the securities being sold by such Selling Shareholder Participating Holders, their counsel and to each managing underwriter, if any, such number of conformed copies of such registration statement and of each statement, amendment and supplement thereto (in each case including all exhibits), such number of copies of exhibits thereto and documents incorporated by reference therein) in the prospectus contained included 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 Participating Holders, their counsel or any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, managing underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned Securities.
(iii) After the filing of the registration statement, the Company will promptly notify each Participating Holder of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions as soon as reasonably practicable to prevent the entry of such Selling Shareholder;stop order or to remove it if entered.
(iv) The Company will use reasonable its best efforts to register or qualify such the Registrable Securities covered to be offered by such registration statement the Participating Holders for offer and sale under such other securities laws or blue sky laws of such jurisdictions in the United States as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder Participating Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except ; PROVIDED that the Company shall will not for any such purpose be required to (Ax) 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 (iv) be obligated to be so qualified), (By) subject itself to taxation in any such jurisdiction or (Cz) file a general consent to general service of process in any such jurisdiction;.
(v) At any time when a prospectus relating to a sale of Registrable Securities is required by law to be delivered in connection with sales by an underwriter or dealer, the Company will promptly notify each Participating Holder of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company will promptly make available to each Participating Holder and to the underwriters any such supplement or amendment. Upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, the Warrant Holder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Warrant Holder and the underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Warrant Holder will deliver to the Company all copies, other than permanent file copies then in the Warrant Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the 180-day period during which such registration statement is required to be maintained effective as provided in SECTION 9(e)(i) shall be extended by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Warrant Holder such supplemented or amended prospectus.
(vi) The Company will enter into customary agreements (including an underwriting agreement in customary form if the offering is to be underwritten) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities.
(vii) The Company will use reasonable its best efforts to comply with all applicable rules and regulations of the Commission, and will make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 10(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(viii) The Company will use its best efforts to cause such all Registrable Securities registered pursuant to this SECTION 9 to be listed on each securities exchange on which similar securities issued by the Company of the same class as such Registrable Securities are then listed and, if no such securities are so listed, use commercially reasonable efforts or to cause such Registrable Securities to be listed quoted on The Nasdaq National Market System if other securities issued by the New York Stock Exchange, Company of the American Stock Exchange or the NASDAQ Stock Market;same class are quoted thereon.
(viiviii) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the 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 (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) will promptly notify in writing each Selling Shareholder Participating Holder and the managing underwriter or underwriters, if any, of the following events:
(A) the filing of when the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
; (B) of any request by the SEC Commission for any amendment or any other Government Entity for amendments or supplements supplement to the registration statement or the prospectus or for additional information;
; and (C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) 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 or any jurisdiction or the initiation or threat of any proceeding for such purpose;.
(ix) The Company will make available for inspection by a representative of a Participating Holder, by any underwriter participating in any disposition pursuant to the registration and by any attorney or account retained by a Participating Holder or underwriters (each, an "Inspector") such financial and other records, pertinent corporate documents and properties of the Company as the Company may reasonably request (the "Records"), and the Company will cause the officers, directors and employees of the Company to supply all information reasonably requested by any such Inspector in connection with such registration.
(x) notify The Company may require any Participating Holder to furnish in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for such information regarding the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingsParticipating Holder, as the case may be, the plan of distribution of the Registrable Securities and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall may be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such Registrable Securities legally required as the Company may from time to time reasonably request to complete or amend the information required by such registration statementin writing.
(bxi) Without limiting any of As a condition to the foregoing, in the event that the offering inclusion of Registrable Securities is owned by any Participating Holder in a registration pursuant to be made by or through an underwriterSection 9(a), the Companyeach such Participating Holder shall, if reasonably requested by the underwriterCompany or by the representative(s) of the underwriters (if any) for such registered offering, shall enter into an underwriting agreement with agree to deliver to the Company and such representative(s) a managing underwriter or underwriters legal opinion of such holder's counsel, covering such matters customarily requested of selling shareholders in connection with such a public offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of shares as the Company contained hereinor such representative(s) by an issuer of common stock may reasonably request and in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from a form reasonably satisfactory to the Company of the happening of any event of the kind described in Section 5.6(a)(xor such representative(s), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to upon the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’s possession of the prospectus current at the time of receipt closing of such notice relating to such Registrable Securities. In the event the Company shall give such notice, any applicable one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECoffering.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 4 contracts
Sources: Warrant Agreement (Kellstrom Industries Inc), Warrant Agreement (Kellstrom Industries Inc), Warrant Agreement (Kellstrom Industries Inc)
Registration Procedures. (a) If and whenever Whenever Shareholders request that any Registrable Securities be registered pursuant to Section 5.01 or 5.02, subject to the provisions of such Sections, the Company is required to shall use its reasonable best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided quickly as practicable, and, in Section 5.1, Section 5.2 and Section 5.3 the connection with any such request:
(a) The Company shall as expeditiously as reasonably possible:
(i) possible prepare and file with the SEC a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use its reasonable best efforts to cause such filed registration statement to become and remain effective pursuant to for a period of not less than 180 days, or in the terms case of this Agreement; provideda shelf registration statement, however, that one year (or such shorter period in which all of 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 within a reasonable time before filing Registering Shareholders included in such registration statement shall have actually been sold thereunder).
(b) Prior to filing a registration statement or prospectus or any amendments thereto (including prospectuses amendment or supplements supplement thereto), the Company will shall, if requested, furnish to each participating Shareholder and each underwriter, if any, of the counsel selected by the Shareholders which are including Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents registration statement as proposed to be filed, which documents will be subject and thereafter the Company shall furnish to the review such Shareholder and comment underwriter, if any, such number of copies of such counselregistration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such review other documents as such Shareholder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Shareholder. Each Shareholder shall have the right to request that the Company modify any information contained in such registration statement, amendment and comment supplement thereto pertaining to be conducted with reasonable promptness such Shareholder and the Company shall use its reasonable best efforts to comply with such request, provided that the Company shall not file have any such documents obligation so to which modify any information if the Selling Shareholders Company reasonably expects that so doing would cause the prospectus to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(representing a majority c) After the filing of the Registrable registration statement, the Company shall (i) cause the related prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities included in such registration) objectAct, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective 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, in each case statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained Registering Shareholders thereof set forth in such registration statement (including each preliminary or supplement to such prospectus and any summary prospectus(iii) and promptly notify each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Registering Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the holding Registrable Securities owned covered by such Selling Shareholder;registration statement of any stop order issued or threatened by the SEC or any state securities commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(ivd) The Company shall use its reasonable best efforts to (i) 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 in the United States as any Selling Registering Shareholder and any underwriter of the securities being sold by holding such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by reasonably (in light of such Selling Shareholder, except that the Company shall not for any such purpose be required to ’s intended plan of distribution) requests and (Aii) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Selling Shareholder(s) thereof such Shareholder to consummate the disposition of the Registrable Securities owned by such Shareholder, provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5.04(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(e) The Company shall immediately notify each Registering Shareholder holding such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities;, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment.
(viii) The Institutional Shareholders shall have the right, in their sole discretion, to select an underwriter or underwriters in connection with any Public Offering resulting from the exercise by the Institutional Shareholders of a Demand Registration which underwriter or underwriters may include an Underwritten Affiliate of an Institutional Shareholder and (ii) the Company shall select an underwriter or underwriters in connection with any other Public Offering. In connection with any Public Offering, obtain for each Selling Shareholder the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take such all other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering, including the engagement of a “qualified independent underwriter:” in connection with the qualification of the underwriting arrangements with the NASD.
(Ag) an opinion Upon execution of counsel for confidentiality agreements in form and substance reasonably satisfactory to the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly Company shall make available for inspection by any Selling Shareholder, Registering Shareholder and any underwriter participating in any disposition pursuant to any a registration statement, statement being filed by the Company pursuant to this Section 5.04 and any attorney, accountant or other agent or representative professional retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), ) as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information reasonably requested by any such Inspector Inspectors in connection with such registration statement statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (yi) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Registering Shareholder agrees that information obtained by it as a result of such inspections shall be subject deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Company Securities unless and until such information is made generally available to the execution by public. Each Registering Shareholder further agrees that, upon learning that disclosure of such Selling Shareholder or other Inspector of a customary confidentiality agreement Records is sought in a form which is reasonably satisfactory court of competent jurisdiction, it shall give notice to the Company and allow the Company;, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(ixh) promptly notify in writing The Company shall furnish to each Selling Registering Shareholder and the underwritersto each such underwriter, if any, a signed counterpart, addressed to such Shareholder or underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the following events:kind customarily covered by opinions or comfort letters, as the case may be, as a majority of such Shareholders or the managing underwriter therefor reasonably requests.
(Ai) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the The Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company or such other document covering the a period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter within three months 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;.
(xiiij) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling such Registering Shareholder and each underwriter, if any, promptly to furnish in writing to the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete or amend the and such other information as may be legally 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, 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 contained herein) by an issuer of common stock in such underwriting agreementsregistration.
(ck) Each Selling such Registering Shareholder agrees that that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x5.04(e), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 5.04(e), and, if so directed by the Company, such Shareholder shall deliver to the Company, at the Company’s expense, Company all copies, other than any permanent file copies, copies then in such Selling Shareholder’s possession possession, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 5.04(a)) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x5.04(e) to the date when all the Company shall make available to such Selling Shareholders shall receive such Shareholder a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 5.04(e).
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(el) The Company shall use its reasonable best efforts to list all Registrable Securities covered by such registration statement on any securities exchange or quotation system on which any of the Registrable Securities are then listed or traded.
(m) The Company shall have appropriate officers of the Company (i) prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other actions to obtain ratings for any Registrable Securities and (iii) otherwise use their reasonable best efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities.
(n) The Company will provide and cause to be maintained a transfer agent and registrar for all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, Registrable Securities covered by a registration statement from and after a date not later than the effective date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyregistration statement.
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Ntelos Holdings Corp), Shareholders Agreement (Ntelos Holdings Corp)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possiblepossible (but, in any event, within 60 days after a Demand Registration Request in the case of Section 2.4(a) below), in connection with the Registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(ia) prepare and file 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 thereafter include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur (i) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (ii) a period of 90 days in the case of an underwritten offering effected pursuant to a registration statement other than a shelf registration statement and a period of three years in the 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 within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses 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 Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”Majority Participating Holders) and to one counsel for the Manager, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents will be subject to the 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 and comment to be conducted with reasonable promptness and the Company shall not file any such documents registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Selling Shareholders (representing a majority of Majority Participating Holders or the Registrable Securities included in such registration) underwriters, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders);
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition 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 covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(iiic) furnish in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering;
(d) furnish, without charge, to each Selling Shareholder Participating Holder and each underwriter, if any, of the securities being sold covered by such Selling Shareholder 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 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 ActAct and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder 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 Selling Shareholderseller (the Company 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) 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 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 Shareholder and sellers of Registrable Securities or any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions (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 (A) 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, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixf) promptly notify in writing each Selling Shareholder Participating Holder and the underwriterseach managing underwriter, if any, of the following events:
: (Ai) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or thereto, any post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, 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;
; (Bii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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;
; (xv) notify in writing each Selling Shareholder, 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 Shareholdernotification 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;
(xig) use reasonable best efforts comply (and continue to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiicomply) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECSEC (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 Shareholdersits security holders, as soon as reasonably practicablepracticable 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 of the Company (which need not be audited) covering the period of at least twelve (12) months, but not more than eighteen (18) months, 12 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;
(xiiih) (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) 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;
(j) 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);
(k) use its reasonable best efforts (i) to obtain an opinion from the Company’s counsel and a comfort letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such 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;
(l) 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;
(m) use its reasonable best efforts to assist Selling Shareholders who made a request to obtain the Company to provide 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 a third party “market maker” for the Class P Sharessale in any jurisdiction;
(xivn) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(o) use its best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(p) prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or underwriters may reasonably request;
(q) furnish to counsel for each Participating Holder and to each managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements 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;
(r) cooperate with the Selling Shareholders Participating Holders 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) 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 in accordance with the managing underwriting agreement at least three Business Days prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(s) cooperate with any due diligence investigation by any Manager, underwriter or such Selling Shareholders may request and keep available Participating Holder and make available to such documents and records of the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
Company and its Subsidiaries that they reasonably request (xv) which, in the case of an Underwritten Offeringthe Participating Holder, cause may be subject to the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized execution by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyPar
Appears in 4 contracts
Sources: Registration Rights Agreement (Colby Michael C.), Registration Rights Agreement (Jones Mark Evan), Registration Rights Agreement (Goosehead Insurance, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities 1933 Act as provided in Section 5.1herein, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possiblecovenants that:
(ia) prepare and file with the SEC before filing a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms Registration Statement (which for purposes of this Agreement; provided, however, that the Company may discontinue Section 4.4 includes 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 within a reasonable time before filing such registration statement Shelf Registration Statement) or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) Shareholder Parties and their respective Representatives copies of all such documents proposed to be filed, which documents will be subject to the their review and reasonable comment, and other documents reasonably requested by any Shareholder Party, including any comment letter from the SEC, and, if requested, provide the Shareholder Parties and their respective Representatives reasonable opportunity to participate in the preparation of such counsel, documents proposed to be filed and such review and comment other opportunities to be conducted with conduct a reasonable promptness and investigation within the Company shall not file any such documents to which the Selling Shareholders (representing a majority meaning of the Registrable Securities included in such registration) object1933 Act, in writingincluding reasonable access to the Company’s officers, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersaccountants and other advisors;
(iib) subject to terms and conditions of this Article IV, the Company will prepare and file with the SEC such amendments and supplements a Registration Statement with respect to such registration statement Registrable Securities on any form for which the Company then qualifies or which counsel for the Company in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate and which form will be available for the prospectus used sale of such Registrable Securities in connection therewith as may be necessary accordance with the intended methods of distribution thereof, use its best efforts to keep cause such registration statement Registration Statement to become and remain effective for the period referred to accordance with this Article IV and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities covered by such registration statement, in each case Registration Statement;
(c) the Company will prepare and file with the SEC or other Governmental Authority having jurisdiction such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective continuously for the period referred to in accordance with the terms of this Article VIV;
(iiid) furnish to each Selling Shareholder and each underwriterif requested by the managing underwriter(s), if any, of or any Shareholder Party, the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each Company will promptly prepare a prospectus supplement or post-effective amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained include in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (supplement or post-effective amendment such information as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriterlead managing underwriter(s), if any, and any Shareholder Party may reasonably request in order to facilitate permit the public sale intended method of distribution of such securities and make all required filings of such prospectus supplement or other disposition of such post-effective amendment as expeditiously as possible after the Registrable Securities owned by Company has received such Selling Shareholderrequest;
(ive) use reasonable best efforts the Company will furnish to the managing underwriter(s), if any, and the Shareholder Parties such number of copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B under the 1933 Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the 1933 Act), all exhibits and other documents filed therewith and such other documents as any Shareholder Party may reasonably request including in order to facilitate the disposition of its Registrable Securities;
(f) the Company will register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws Laws of such jurisdictions as any Selling Shareholder Party or managing underwriter(s), if any, reasonably requests and do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action which acts and things that may be reasonably necessary or reasonably advisable to enable such Selling each Shareholder and underwriter Party to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderShareholder Party, except provided that the Company shall will not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualifiedsubsection, (Bii) subject itself to taxation in any such jurisdiction jurisdiction, or (Ciii) file a general consent to general service of process in any such jurisdiction;
(vg) use the Company will notify the Shareholder Parties at any time when a prospectus relating to the Registrable Securities is required to be delivered under the 1933 Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, as soon as reasonably practicable, prepare and furnish to the Shareholder Parties a reasonable best efforts number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(h) the Company will notify the Shareholder Parties (i) when such Registration Statement or 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 Governmental Authority for amendments or supplements to such Registration Statement or to amend or to supplement such prospectus or for additional information, and (iii) of the issuance by the SEC or other Governmental Authority of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for any of such purposes;
(i) the Company will cause all such Registrable Securities (other than Class A Preferred Shares) to be listed on each securities exchange on which similar securities issued by the Company are then listed andlisted, if no applicable;
(j) the Company will provide a transfer agent and registrar for all such securities are so listedRegistrable Securities not later than the effective date of such Registration Statement;
(k) the Company will make available for inspection by the Shareholder Parties and their counsel, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any Shareholder Party or any underwriter, all financial and other books and records, pertinent corporate documents and documents relating to the business of the Company and customarily provided in a secondary offering, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any Shareholder Party or any underwriter, attorney, accountant or agent in connection with such Registration Statement, provided that it will be a condition to such inspection and receipt of such information that the inspecting Person (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company and (ii) agree to use commercially reasonable efforts to cause minimize the disruption to the Company’s business in connection with the foregoing;
(l) the Company will, if requested, 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 any Shareholder Party reasonably requests;
(m) the Company will, if requested, obtain a legal opinion and “10b-5” disclosure letter of the Company’s outside counsel in customary form and covering such matters of the type customarily covered by legal opinions or “10b-5” disclosure letters of such nature and reasonably satisfactory to the requesting Shareholder Party, which opinion or “10b-5” disclosure letter will be addressed to any underwriters and such Shareholder Party;
(n) the Company will, if applicable, reasonably cooperate with the Shareholder Parties and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be listed on made with the New York Stock ExchangeFinancial Industry Regulatory Authority, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such and any other governmental agencies or authorities as may be reasonably necessary to enable the Selling Shareholder(s) thereof Shareholder Parties to consummate the disposition of such Registrable Securities;
(viio) the Company will enter into such agreements (including an underwriting agreement in connection with an Underwritten Offeringform, obtain for each Selling Shareholder scope and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested substance as is customary in underwritten offerings offerings) and use its reasonable best efforts to take all such other matters as may be actions reasonably requested by such Selling any Shareholder and underwriters, and
Party therewith (B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed including those reasonably requested by the independent public accountants who have certified managing underwriter(s), if any) to expedite or facilitate the Company’s financial statements included disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration statement;
is an underwritten Public Offering, (viiii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, such representations and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject warranties to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder Parties and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement business of the Company, and the Registration Statement, prospectus and documents, if any, incorporated or any post-effective amendment theretodeemed to be incorporated by reference therein, when in each case, in form, substance and scope as are customarily made by issuers in underwritten offerings, and, if true, confirm the same has become effectiveif and when requested, (ii) to the extent an underwriting agreement or similar agreement is entered into, provide an indemnity to the Shareholder Parties and the underwriters in form, scope and substance as is customary in underwritten offerings, and (iii) deliver such documents and certificates as reasonably requested by any Shareholder Party and the lead managing underwriters(s), if any, to evidence the continued validity of the representations and warranties made pursuant to sub-clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company, in each case as and to the extent required thereunder;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(Cp) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) will use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts any Registration Statement filed pursuant to comply with all applicable rules and regulations this Article IV, or the lifting of any suspension of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement qualification (or exemption from qualification) of any of the Company covering Registrable Securities for sale in any jurisdiction at the period of at least twelve (12) monthsearliest reasonable practicable date, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to provided that the Company will not be required to provide (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for a third party “market maker” for the Class P Shares;
this subsection, (xivii) cooperate with the Selling Shareholders and the managing underwriter subject itself to facilitate the timely preparation and delivery taxation in any such jurisdiction, or (iii) consent to general service of certificates (which shall not bear process in any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling 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 certificatesjurisdiction; and
(xvq) the Company will endeavor in the case of an Underwritten Offering, cause the good faith to have appropriate officers of the Company to use prepare and make presentations at a reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any customary number of “road shows” (domestic and foreign) and before analysts and rating agencies calls and meetingsagencies, as the case may be, and other information meetings and customary marketing activities reasonably organized by the underwriters, underwriters and otherwise using their use reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders Shareholder Parties and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 4 contracts
Sources: Shareholder Agreement (Westinghouse Air Brake Technologies Corp), Shareholder Agreement (Westinghouse Air Brake Technologies Corp), Shareholder Agreement (Transportation Systems Holdings Inc.)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts by the provisions of Section 11(a) or 11(b) to effect the registration of any Registrable Securities Stock under the Securities Act as provided in Section 5.1Act, Section 5.2 and Section 5.3 the Company shall as will, at its expense, expeditiously as reasonably possible:
(i) In accordance with the Securities Act and the rules and regulations of the Commission, prepare and file with the SEC Commission a registration statement on the form of registration statement appropriate with respect to effect such registration securities and thereafter use reasonable its best efforts to cause such 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 within a reasonable time before filing covered by such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counselhave been sold, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and supplements to the prospectus used in connection therewith contained therein as may be necessary to keep such registration statement effective and to comply with such registration statement and prospectus accurate and complete until the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statementstatement have been sold;
(ii) If the offering is to be underwritten, in each case whole or in accordance part, enter into a written underwriting agreement with the terms holders of this Article Vthe Registrable Stock participating in such offering and the underwriter in form and substance reasonably satisfactory to the managing underwriter of the public offering and the holders of the Registrable Stock participating in such offering;
(iii) furnish Furnish to each Selling Shareholder the holders of securities participating in such registration and each underwriter, if any, to the underwriters of the securities being sold by registered such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such reasonable number of copies of the prospectus contained in such registration statement (including each statement, preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder underwriters and underwriter, if any, holders may reasonably request in order to facilitate the public sale or other disposition offering of the Registrable Securities owned by such Selling Shareholdersecurities;
(iv) use reasonable Use its best efforts to register or qualify such Registrable Securities the securities covered by such registration statement under such other state securities laws or blue sky laws of such jurisdictions as any Selling Shareholder such participating holders and any underwriter of the securities being sold by such Selling Shareholder shall underwriters may reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;.
(v) use reasonable best efforts Notify the holders participating in such registration, promptly after it shall receive notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a supplement to cause any prospectus forming a part 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, the American Stock Exchange or the NASDAQ Stock Marketregistration statement has been filed;
(vi) use reasonable best efforts to cause Notify such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition holders promptly of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC Commission for the amending or any other Government Entity for amendments or supplements to the supplementing of such registration statement or the prospectus or for additional information;
(Cvii) Prepare and file with the issuance by Commission, promptly upon the SEC or any other Government Entity request of any stop order suspending the effectiveness of the such holders, any amendments or supplements to such registration statement or prospectus which, in the initiation opinion of any proceedings by any Person counsel for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale such holders, is required under the securities or blue sky laws of any jurisdiction Securities Act or the initiation rules and regulations thereunder in connection with the distribution or threat of any proceeding for the Registrable Stock by such purposeholders;
(xviii) Prepare and promptly file with the Commission, and promptly notify in writing each Selling Shareholdersuch holders of 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 any the time when a prospectus relating thereto to such securities is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event has occurred as a the result of which, the which any such prospectus included in such registration statement, as or any other prospectus is then in effect, includes effect may include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(ix) In case any of such holders 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 of the Commission, and, at the prepare promptly upon request of any Selling Shareholder, promptly prepare and furnish such amendments or supplements to such seller a reasonable number of copies of a supplement to or an amendment of registration statement and such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, in order for such prospectus shall not include an untrue statement to comply with the requirements of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingSecurities Act and such rules and regulations;
(xix) use reasonable best efforts to preventAdvise such holders, and promptly after it shall receive notice or obtain knowledge thereof, of the withdrawal of, issuance of any stop order by the Commission suspending the effectiveness of such registration statementstatement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(xi) If requested by the managing underwriter or underwriters or a holder of Registrable Stock being sold in connection with an underwritten offering, immediately incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Stock being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Stock, including information with respect to the Registrable Stock being sold to such underwriters, the purchase price being paid for by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Stock 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;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (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 Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders Registrable Stock and the managing underwriter underwriters, if any, to facilitate the timely preparation and delivery of certificates (which shall representing Registrable Stock to be sold and not bear bearing any restrictive legends unless required under applicable law) representing securities sold under any registration statement, legends; and enable such securities Registrable Stock to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders underwriters may request and keep available and make available at least two business days prior to any sale of Registrable Securities to the Company’s transfer agent prior underwriters;
(xiii) Prepare a prospectus supplement or post-effective amendment to the effectiveness registration statement or the related prospectus or any document incorporated therein by reference or file any other required documents so that, as thereafter delivered to the purchasers of the Registrable Stock, the prospectus will not contain an untrue statement of material fact or omit to state any material fact necessary to make the statements therein not misleading;
(xiv) Enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration statement a supply is an underwritten registration:
(A) make such representations and warranties to the holders of such certificatesRegistrable Stock and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings;
(B) If an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 11(e) hereof with respect to all parties to be indemnified pursuant to said Section; and
(xvC) in the case of an Underwritten Offering, cause the appropriate officers of the The Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing shall deliver such documents and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, certificates as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably be requested by the Selling Shareholders and holders of the underwriters in the offering, marketing or selling majority of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer Stock being sold and the President of the Company. The Company may require each Selling Shareholder and each underwritermanaging underwriters, if any, to furnish evidence compliance with the Company in writing such information regarding each Selling Shareholder or underwriter terms of this Section 11(c) 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 with any of the foregoing, customary conditions contained in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) and, if so directed other agreement entered into by the Company, deliver . The above shall be done at each closing under such underwriting or similar agreement or as and to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.extend required thereunder;
(dxv) With Make available for inspection by a view to making available to representative of the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation a majority of the SEC that may at Registrable Stock, any time permit a holder to sell securities of the Company to the public without registration or underwriter participating in any disposition pursuant to a registration on Form S-3 (statement, and any attorney or any successor form)accountant retained by the sellers or underwriter, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports financial and other records, pertinent corporate documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such other reports and documents so filed representative, underwriter, attorney or furnished by the Company as such holder may request accountant in connection with the sale preparation of Registrable Securities without registration.the registration statement; provided, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such persons unless disclosure of such records, information or documents is required by court or administrative order;
(exvi) The Company shall Otherwise use its reasonable best efforts to take comply with all action necessary applicable rules and regulations of the Commission, and make generally available to the Company's security holders, earning 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 appropriate upon ninety (90) days, if such a period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Stock is sold to underwriters in an 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;
(xvii) Not file any amendment or supplement to such registration statement or prospectus to which a majority in interest of such holders has objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or the rules and regulations thereunder, after having been furnished with a copy thereof at least five (5) business days prior to the filing thereof; provided, however, that the failure of such holders or their counsel to review or object to any amendment or supplement to such registration statement or prospectus shall not affect the rights of such holders or any controlling person or persons thereof or any underwriter or underwriters therefor under Section 11(e) hereof; and
(xviii) At the request of any Investor Shareholder such holder (i) furnish to ensure that Class A Shareholders aresuch holder on the effective date of the registration statement or, if such registration includes an underwritten public offering, at the closing provided for in the underwriting agreement; an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the holder or holders making such request, covering such matters with respect to the registration statement, the prospectus and each amendment or supplement thereto, proceedings under state and federal securities laws, other matters relating to the Company, the securities being registered and the offer and sale of such securities as are customarily the subject of opinions of issuer's counsel provided to underwriters in underwritten public offerings, and such opinion of counsel shall additionally cover such legal and factual matters with respect to the registration as such requesting holder or holders may reasonably request, and (ii) use its best efforts to furnish to such holder letters dated each such effective date and such closing date, from and after the date hereofindependent certified public accountants of the Company, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (addressed to the extent Class P Shares could otherwise then be Transferred underwriters, if they were already outstanding), as contemplated by the Charterany, and shall not take to the holder or cause to be taken (including through holders making such request, stating that they are independent certified public accountants within the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality meaning of the foregoingSecurities Act and dealing with such matters as the underwriters may request, or, if the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; providedoffering is not underwritten, that in the opinion of such event, accountants the financial statements and other financial data of the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result included in the failure following such restructuring to preserve registration statement or the prospectus or any amendment or supplement thereto comply in all material respects with the economic and other rights (including conversion, Transfer, distributionapplicable accounting requirements of the Securities Act, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatmentadditionally covering such other financial matters, including on a relative basis, information as to the period ending immediately prior to the date of such letter with respect to the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares registration statement and the Class P Sharesprospectus, as they exist immediatelysuch requesting holder or holders may reasonably request.
Appears in 4 contracts
Sources: Warrant Agreement (Woodbourne Partners L P), Warrant Agreement (Allied Healthcare Products Inc), Warrant Agreement (Allied Healthcare Products Inc)
Registration Procedures. (a) If and whenever the Company is required to use its commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.12 or 3, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(i) prepare and promptly file with the SEC Commission a registration statement with respect to effect such Registrable Securities (in any event, use its best efforts to file such registration statement within ninety (90) days after the end of the period within which requests for registration may be delivered to the Company) and thereafter use 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholderseffective;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities and other securities covered by such registration statement, in each case statement until the earlier of such time as all of such Registrable Securities and other securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement or the expiration of six (6) months after such registration statement becomes effective;
(iii) furnish to each Selling Shareholder and each underwriterseller of such Registrable Securities, if anywithout charge, of the securities being sold by such Selling Shareholder 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 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, such documents incorporated by reference in such registration statement or prospectus, and such other documents documents, as such Selling Shareholder 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 Selling Shareholderrequest;
(iv) use reasonable its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other the securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of each seller (or in an underwritten offering, the securities being sold by such Selling Shareholder managing underwriter) 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the its Registrable Securities owned covered by such Selling Shareholderregistration statement, 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 is not but for the requirements of this clause (iv) be obligated to be so qualified, (B) or to subject itself to taxation in any such jurisdiction jurisdiction, or (C) file a general to consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts furnish to cause such each seller of 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 reasonable best efforts to cause such Registrable Securities covered by means of such registration statement a signed counterpart, addressed to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition seller, of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering dated the matters customarily covered in opinions requested in effective date of such registration statement (or, if such registration includes an underwritten offerings public offering, dated the date of the closing under the underwriting agreement speaking both as of the effective date of the registration statement and such other matters as may be reasonably requested by such Selling Shareholder the date of the closing under the underwriting agreement) and underwriters, and
(B) a “"cold comfort” " letter dated the effective date of such registration statement (orand, in if such registration statement includes 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) signed by the independent public accountants who have certified the Company’s 's financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant covering substantially the same matters with respect to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement (and (ythe prospectus included therein) be reasonably available for due diligence discussions and sessions (taking into account and, in the Company’s business needs); provided, however, that, the disclosure case of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, andaccountants' 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 accountants' letters delivered to underwriters in underwritten public offerings of securities and, in the same has become effectivecase of the accountants' letter, such other financial matters, as such seller may reasonably request;
(Bvi) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity immediately notify each seller of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) 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;
(x) notify in writing each Selling Shareholderregistration 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, 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 then existing, and, and at the request of any Selling Shareholder, promptly such seller prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSecurities or other 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiivii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits securities holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day month of the Company’s first full fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificatesAct; and
(xvviii) in use its best efforts to list such securities on the case of an Underwritten Offering, cause NASDAQ and each securities exchange on which the appropriate officers Common Stock of the Company to use reasonable best efforts to facilitate all offeringsis then listed, including with respect to preparing marketing if such securities are not already so listed and offering materialsif such listing is then permitted under the rules of such exchange, preparingand, making presentations atif necessary, provide a transfer agent and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as registrar for such Registrable Securities not later than the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling effective date of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companysuch registration statement. The Company may require each Selling Shareholder and each underwriter, if any, such holder of Registrable Securities as to which any registration is being effected to furnish the Company in writing such information regarding each Selling Shareholder or underwriter such holder and the distribution of such Registrable Securities securities as the Company may from time to time reasonably request to complete or amend the information in writing and as shall be required by such registration statementlaw or by the Commission in connection therewith.
(b) Without limiting If the Company at any time proposes to register any of its securities under the foregoingSecurities Act (other than pursuant to a request made under Section 2), in the event that the offering of Registrable Securities is whether or not for sale for its own account, and such securities are to be made distributed by or through an underwriterone or more underwriters, the CompanyCompany will, subject to Section 3(a)(ii), make reasonable efforts, if requested by any holder of Registrable Securities who requests incidental registration of Registrable Securities in connection therewith pursuant to Section 3, arrange for such underwriters to include such Registrable Securities among those securities to be distributed by or through such underwriters. The holders of Registrable Securities on whose behalf Registrable Securities are to be distributed by such underwriters shall be parties to any such underwriting agreement and the underwriterrepresentations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters, shall enter into an underwriting agreement with a managing underwriter or underwriters in connection with also be made to and for the benefit of such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements holders of the Company contained herein) by an issuer of common stock in such underwriting agreementsRegistrable Securities.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from Whenever a registration requested pursuant to Section 2 is for an underwritten offering, the Company shall have the right to select the managing underwriter to administer the offering, subject to the approval of the happening holders of any event a majority of the kind described Registrable Securities included in Section 5.6(a)(x)such registration, such Selling Shareholder approval not to be unreasonably withheld or delayed. If the Company at any time proposes to register any of its securities under the Securities Act for sale for its own account and such securities are to be distributed by or through one or more underwriters, the managing underwriter shall forthwith discontinue such Selling Shareholder’s disposition be selected by the Company.
(d) If any registration pursuant to Section 2 or 3 shall be in connection with an underwritten public offering, each holder of Registrable Securities pursuant agrees by acquisition of such Registrable Securities, if so required by the managing underwriters, not to effect any public sale or distribution of Registrable Securities (other than as part of such underwritten public offering) within the period of time between fourteen (14) days prior to the applicable effective date of such registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) day period during which days after the effective date of 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECstatement.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 4 contracts
Sources: Note Purchase Agreement (GenuTec Business Solutions, Inc.), Note Purchase Agreement (Technology Investment Capital Corp), Preferred Stock Purchase Agreement (SeaView Mezzanine Fund L P)
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, the Company is required to will use its reasonable best efforts to effect the registration of any the Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
9.1.1 Prepare and file with the Commission a Registration Statement on an appropriate form under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC a registration statement to effect such registration and thereafter use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective pursuant to at the terms of this Agreementearliest practicable date; 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 within a reasonable time before filing such registration statement a Registration Statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), including documents incorporated by reference after the initial filing of any Registration Statement, the Company will promptly furnish to the counsel selected by the Shareholders which are including holders of Registrable Securities in such registration to be registered pursuant to this Agreement (the “Selling ShareholdersRegistered Holders”) and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the review of the Registered Holders and comment of such counselthe underwriters, and such review and comment to be conducted with reasonable promptness and the Company shall will not file any Registration Statement or amendment thereto, or any prospectus or any supplement thereto (including such documents incorporated by reference) to which the Selling Shareholders (representing a majority Registered Holders or the underwriters, if any, shall reasonably object in light of the Registrable requirements of the Securities included in such registration) object, in writing, on a timely basis, based on Act and any disclosure included therein that relates to such Selling Shareholders;other applicable laws and regulations.
(ii) prepare 9.1.2 Prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary to keep such registration statement 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, in each case Registration Statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained disposition set forth in such registration statement (including each preliminary Registration Statement or prospectus and any summary or supplement to such prospectus) and each free writing prospectus (as defined in Rule 405 of .
9.1.3 Notify the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder Registered Holders and the managing underwriters, if any, of the following events:
promptly, and (Aif requested by any such Person) the filing of the registration statementconfirm such advice in writing, any amendment thereto, the (i) when a prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the registration statement a Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the registration statement a Registration Statement or the related prospectus or for additional information;
, (Ciii) of the issuance by the SEC or any other Government Entity Commission 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; and
, (Div) if at any time the representations and warranties of the Company contemplated by subsection 9.1.10 cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of 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;
, (xvi) notify in writing each Selling Shareholder, 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 the 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 Shareholderearliest 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 the 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 the 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 the 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 therein, in light of the circumstances under which they were made, not misleading;.
9.1.10 Enter into such agreements (xiincluding an underwriting agreement) use reasonable best efforts and take all such other actions in connection therewith in order to preventexpedite 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 such representations and warranties to the Registered Holders as to the Registration Statement, 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 the Company and updates thereof with respect to the Registration Statement and the 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 the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and the Registered Holders) addressed to the Registered Holders and the underwriters, if any, covering the matters customarily covered in opinions delivered in underwritten offerings and such other matters as may be reasonably requested by the Registered Holders and such underwriters; (iv) obtain comfort letters and updates thereof from the Company’s independent certified public accountants addressed to the Registered Holders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in 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) the 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 underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder.
9.1.11 Make available for inspection by a representative of the Registered Holders, any underwriter participating in any disposition pursuant to such registration, and obtain any attorney or accountant retained by the withdrawal ofRegistered Holders or such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any order suspending such representative, underwriter, attorney or accountant in connection with such registration; provided, that any records, information or documents that are designated by the effectiveness Company in writing as confidential shall be kept confidential by such Persons unless disclosures of such registration statement;records, information or documents is required by court or administrative order.
(xii) otherwise 9.1.12 Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;, 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 the Company’s first fiscal quarter next succeeding each sale of Registrable Securities after the effective date of a Registration Statement, which statements shall cover said 12-month periods.
(xiii) 9.1.13 Use its reasonable best efforts to list all Registrable Securities covered by the Registration Statement on the Nasdaq Global Market and any other securities exchange or trading market on which any of the equity securities of the Company of the same class as the Registrable Securities are then listed.
9.1.14 At all times during the term of this Agreement, maintain the effectiveness of the registration of the Common Stock under the Exchange Act and use its reasonable best efforts to assist Selling Shareholders who made prepare and file in a request to the Company to provide for a third party “market maker” for the Class P Shares;timely manner all documents and reports required by such Act.
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to 9.1.15 If the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) , in the case exercise of an Underwritten Offeringits reasonable judgment, cause the appropriate officers of the Company objects to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably change requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (Registered Holders or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriterunderwriters, if any, to furnish the Company in writing such information regarding each Selling Shareholder any Registration Statement or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete prospectus or amend the information required by such registration statement.
any amendments or supplements thereto (b) Without limiting any of the foregoing, in the event that the offering of Registrable Securities is including documents incorporated or to be made incorporated therein by or through an underwriter, the Company, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters reference) as provided for in connection with such offering 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 such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in this Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event9, the Company shall not be required obligated to take make any action such change and such Registered Holders may withdraw their Registrable Securities from such registration, in which event (i) the Company shall pay all registration expenses (including its counsel fees and expenses) incurred in connection with such Registration Statement or amendment thereto or prospectus or supplement thereto, and (ii) in the case of a registration being effected pursuant to this Section 5.6(e) that would result in the failure following 2, such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights registration shall not count as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, one of the Investor Shareholders, registrations the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyCompany is obligated to effect pursuant to Section 2.
Appears in 3 contracts
Sources: Registration Rights Agreement (Halcon Resources Corp), Securities Purchase Agreement (Ram Energy Resources Inc), Registration Rights Agreement (Halcon Resources Corp)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possiblepossible (but, in any event, within 60 days after a Demand Registration Request in the case of Section 2.4(a) below), in connection with the registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(ia) prepare and file 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 thereafter include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur of (A) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (B) the expiration of 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 within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses 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 Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”Majority Participating Holders) and to one counsel for the Manager, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents will be subject to the 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 and comment to be conducted with reasonable promptness and the Company shall not file any such documents registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Selling Shareholders (representing a majority of Majority Participating Holders or the Registrable Securities included in such registration) underwriters, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders);
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition 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 covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(iiic) furnish in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering;
(d) furnish, without charge, to each Selling Shareholder Participating Holder and each underwriter, if any, of the securities being sold covered by such Selling Shareholder 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 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 ActAct and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder 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 Selling Shareholderseller (the Company 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) 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 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 Shareholder and sellers of Registrable Securities or any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions (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 (A) 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, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixf) promptly notify in writing each Selling Shareholder Participating Holder and the underwriterseach managing underwriter, if any, of the following events:
: (Ai) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or thereto, any post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, 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;
; (Bii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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;
; (xv) notify in writing each Selling Shareholder, 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 Shareholdernotification 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;
(xig) use reasonable best efforts comply (and continue to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiicomply) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECSEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13 a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13 a-15(f)) in accordance with the Exchange Act), and make generally available to Selling Shareholdersits security holders, as soon as reasonably practicablepracticable 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 of the Company (which need not be audited) covering the period of at least twelve (12) months, but not more than eighteen (18) months, 12 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;
(xiiih) (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) 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;
(j) 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);
(k) use its reasonable best efforts to assist Selling Shareholders (i) obtain an opinion from the Company’s counsel and a comfort letter and updates thereof from the Company’s independent public accountants who made a request 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 Company date of such financial statements) delivered to provide for 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 third party “market maker” for the Class P Sharescopy of such opinion and letter addressed to such underwriter;
(xivl) 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;
(m) 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;
(n) provide a CUSIP number for all Registrable Securities, no later than the effective date of the registration statement;
(o) use its best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(p) prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or underwriters may reasonably request;
(q) furnish to counsel for each Participating Holder and to each managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements 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;
(r) cooperate with the Selling Shareholders Participating Holders 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) 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 in accordance with the managing underwriting agreement at least three Business Days prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(s) cooperate with any due diligence investigation by any Manager, underwriter or such Selling Shareholders may request and keep available Participating Holder and make available to such documents and records of the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
Company and its Subsidiaries that they reasonably request (xv) which, in the case of an Underwritten Offeringthe Participating Holder, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelythe
Appears in 3 contracts
Sources: Registration Rights Agreement (TWFG, Inc.), Registration Rights Agreement (TWFG, Inc.), Registration Rights Agreement (TWFG, Inc.)
Registration Procedures. In the case of each registration effected by the Company pursuant to this Agreement, the Company will keep the Purchaser advised in writing as to the initiation of each registration and as to the completion thereof. At its expense the Company will:
(a) If keep such registration pursuant to Sections 10.2 and whenever 10.3 continuously effective for a period of 120 days, or, in each case, such reasonable period necessary to permit the Company is required Purchaser to use reasonable best efforts to effect complete the distribution described in the registration of any Registrable Securities under the Securities Act as provided in Section 5.1statement relating thereto, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:whichever first occurs;
(ib) promptly prepare and file with the SEC a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect Act, and to the disposition of all securities covered by keep such registration statement, statement effective for that period of time specified in each case in accordance with the terms of this Article VSection 10.5(a);
(iiic) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents incident thereto as such Selling Shareholder and underwriter, if any, the Purchaser from time to time may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(e) register or qualify 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 as any Selling Shareholder and any the Purchaser or underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, requires (except that the Company shall not for any such purpose be required to (A) go register or qualify generally to do business as a foreign corporation in any jurisdiction wherein in which it would not but for the requirements of this clause (iv) be obligated required to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file execute a general consent to service of process process), and keep such registration or qualification effective during the period set forth in any such jurisdictionSection 10.5(a);
(vf) use reasonable best efforts to cause such all Registrable Securities covered by such registrations to be listed on each securities exchange exchange, including NASDAQ, 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;
(vig) use reasonable best efforts cause its accountants to cause issue to the underwriter, if any, comfort letters and updates thereof, in customary form and covering matters of the type customarily covered in such Registrable Securities covered by letters with respect to underwritten offerings;
(h) enter into such registration statement to be registered with or approved by customary agreements (including underwriting agreements in customary form) and take all such other governmental agencies actions as the Purchaser reasonably requests in order to expedite or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate facilitate the disposition of such Registrable Securities;
(viii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling ShareholderPurchaser, 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 Selling Shareholder 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 's officers, directors directors, employees and employees independent accountants to (x) supply all information reasonably requested by any such Inspector seller, underwriter, attorney, accountant or agent in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Companystatement;
(ixj) promptly notify in writing each Selling Shareholder and if the offering is underwritten, at the request of the Purchaser furnish (i) an opinion of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, of stating that such registration statement has become effective under the following events:
Securities Act and that (A) to the filing best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any amendment theretoopinion as to financial statements or other financial data contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters and (ii) a letter from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the prospectus or any prospectus supplement related thereto or post-effective amendment to financial statements of the registration statement or any Free Writing Prospectus utilized Company included in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC prospectus, or any other Government Entity of any stop order suspending amendment or supplement thereof, comply as to form in all material respects with the effectiveness 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 statement or the initiation of any proceedings by any Person for that purposeas such underwriters reasonably may request; and
(D) 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;
(xk) notify in writing each Selling Shareholder, the Purchaser 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 of which it has knowledge 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain misleading in the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations light of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companycircumstances then existing. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and Notwithstanding any other rule or regulation provision of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form)this Section 10, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take file a registration statement during any action pursuant to this Section 5.6(eperiod that such filing is not permitted and (ii) that would result in the failure following such restructuring to preserve in all material respects Purchaser shall suspend any sale of Registrable Securities at the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, request of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyCompany for a period not exceeding 90 days.
Appears in 3 contracts
Sources: Common Stock Purchase Agreement (Agilent Technologies Inc), Common Stock Purchase Agreement (Diametrics Medical Inc), Common Stock Purchase Agreement (Hewlett Packard Co)
Registration Procedures. (a) If and whenever Whenever the Company is required by the provisions of this Agreement to use commercially reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall Company, as expeditiously as reasonably possible:
(ia) shall prepare and file with the SEC a the requisite registration statement statement, which shall comply as to effect such registration form in all material respects with the requirements of the applicable form and thereafter shall include all financial statements required by the SEC to be filed therewith, and 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 within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), or comparable statements under securities or blue sky laws of any jurisdiction, or any Issuer Free Writing Prospectus related thereto, the Company will furnish to one counsel for the counsel Holders participating in the planned offering (selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”Majority Participating Holders) and the lead managing underwriter, 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 such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents registration statement or amendment thereto, any prospectus or supplement thereto or any Issuer Free Writing Prospectus related thereto to which the Selling Shareholders (representing a majority of Majority Participating Holders or the Registrable Securities included in such registration) underwriters, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders);
(iib) shall 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 for such period 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement;
(iiic) furnish shall furnish, without charge, to each Selling Shareholder seller of such Registrable Securities and each underwriter, if any, of the securities being sold covered by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of such registration statement, each amendment thereto, the prospectus contained included in such registration statement (including statement, each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Issuer Free Writing Prospectus”) Prospectus utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Acttherewith, all in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder seller and underwriter, if any, underwriter reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller, and shall consent to the use in accordance with all applicable law of each such registration statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer Free Writing Prospectus 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) shall use commercially reasonable 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 Shareholder and sellers of Registrable Securities or any underwriter of the securities being sold by such Selling Shareholder managing underwriter, if any, reasonably shall reasonably request, and take do any and all other action which acts and things that may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions, except that in no event shall 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 where, but for the requirements of this clause (iv) Section 2.4(d), it would not be obligated required to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on shall 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best 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 Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offeringand each managing underwriter, obtain for each Selling Shareholder and underwriterif any:
(Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or thereto, any post-effective amendment to the registration statement or any Issuer Free Writing Prospectus utilized in connection therewith, has been filed and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
(Bii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
(Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and;
(Div) 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;
(xv) notify in writing each Selling Shareholder, 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, the prospectus included in related thereto, any document incorporated therein by reference, any Issuer 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 notification relates to an event described in clause (v), the Company, subject to the provisions of any Selling ShareholderSection 2.1(c), promptly shall prepare and file with the SEC, and furnish to such each seller and each underwriter, if any, a reasonable number of copies of 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;
(xif) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to shall comply with all applicable rules and regulations of the SEC, and make generally available to Selling Shareholdersits security holders, as soon as reasonably practicablepracticable after the effective date of the registration statement (and in any event within 90 days after the end of such 12 month period described hereafter), an earnings statement of the Company statement, which need not be audited, covering the period of at least twelve (12) months, but not more than eighteen (18) months, 12 consecutive 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;
(xiiig) shall use its commercially reasonable best efforts to assist Selling Shareholders who made cause all Registrable Securities covered by such registration statement to be authorized to be listed on a request to national securities exchange if shares of the Company to provide for a third party “market maker” for particular class of Registrable Securities are at that time, or will be immediately following the Class P Sharesoffering, listed on such exchange;
(xivh) shall 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) shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders 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 that 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);
(j) shall use commercially reasonable efforts to obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any;
(k) shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement;
(l) shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(m) shall make reasonably available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters, taking into account the needs of the Company’s businesses and the requirements of the marketing process, in the marketing of Registrable Securities in any underwritten offering;
(n) shall promptly prior to the filing of any document that is to be incorporated by reference into the registration statement or the prospectus, and prior to the filing of any Issuer Free Writing Prospectus, provide copies of such document to counsel for the selling holders of Registrable Securities 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 selling holders prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;
(o) shall cooperate with the Selling Shareholders sellers 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) 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 in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the sellers of Registrable Securities at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(p) shall take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the managing underwriter disposition of such Registrable Securities;
(q) shall not take any direct or such Selling Shareholders may request and keep available and make available indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to the Company’s transfer , the Company will take such action as is necessary to make any such prohibition inapplicable;
(r) shall cooperate with each seller of Registrable Securities and each underwriter or agent prior to participating in the effectiveness disposition of such registration statement a supply of such certificatesRegistrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(xvs) shall take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material respects with the case Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of an Underwritten Offeringa material fact or omit to state a material fact necessary to make the statements therein, cause the appropriate officers in light of the Company to use reasonable best efforts to facilitate all offeringscircumstances under which they were made, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companynot misleading. The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each Selling Shareholder and each underwriter, if any, seller of Registrable Securities as to which any registration is being effected furnish the Company such information in writing regarding such information regarding each Selling Shareholder or underwriter seller and the distribution of such Registrable Securities as the Company may from time to time reasonably request may request; provided, that such information is necessary for the Company to complete or amend the information required by consummate such registration statement.
(b) Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to and shall be made by or through an underwriter, the Company, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters used only in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements registration. Each seller of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder Registrable Securities agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in under Section 5.6(a)(x2.4(e)(v), such Selling Shareholder shall forthwith seller will discontinue such Selling Shareholderseller’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholderseller’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securitiesprospectus. In the event the Company shall give any such notice, any the applicable one hundred twenty (120period set forth in Section 2.4(b) day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the such period from and including the date of the giving of a written such notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all each seller of any Registrable Securities covered by such Selling Shareholders registration statement shall receive such a have received the copies of the supplemented or amended prospectus and prospectus. If any such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 registration statement or comparable statement under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish “blue sky” laws refers to any holder so long Holder by name or otherwise as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements Holder of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report any securities of the Company, such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such other reports Holder and documents so filed or furnished the Company, to the effect that the holding by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer Holder of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall securities is not take or cause to be taken (including through construed as a recommendation by such Holder of the investment quality of the Company’s transfer agent) securities covered thereby and that such holding does not imply that such Holder will assist in meeting any action inconsistent with the foregoing. Without limiting the generality future financial requirements of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time (ii) in the event that any applicable law adversely affects such reference to such Holder by name or otherwise is not in the ability judgment of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding)Company, as contemplated advised by counsel, required by the Charter; provided, that Securities Act or any similar federal statute or any state “blue sky” or securities law then in such eventforce, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, deletion of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyreference to such Holder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Del Frisco's Restaurant Group, Inc.), Registration Rights Agreement (Del Frisco's Restaurant Group, LLC), Registration Rights Agreement (Del Frisco's Restaurant Group, LLC)
Registration Procedures. (a) If and whenever In connection with the Company is required filing by LeukoSite of the Stockholder Registration Statement, LeukoSite shall furnish to use reasonable best efforts to effect each Registering Stockholder a copy of the registration prospectus, including a preliminary prospectus, in conformity with the requirements of any Registrable Securities under the Securities Act as provided in Act. Subject to Section 5.16.2 hereof, Section 5.2 and Section 5.3 the Company LeukoSite shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement the Stockholder Registration Statement and the prospectus used in connection therewith with such Stockholder Registration Statement as may be reasonably necessary to keep such registration statement Stockholder Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Merger Common Shares pursuant to such registration statementStockholder Registration Statement until the earlier of (i) such time as all such Merger Common Shares have been disposed of, in each case in accordance with the terms of this Article V;
(ii) such time as such Merger Common Shares are eligible for sale pursuant to Rule 144 (without being subject to volume limitations), or (iii) the second anniversary of the Closing Date. LeukoSite shall furnish to each Selling Shareholder Registering Stockholder a copy of any amendment or supplement to such Stockholder Registration Statement or prospectus prior to filing the same with the SEC, and each underwritershall not file any such amendment or supplement to which any such requesting Registering Stockholder shall reasonably have objected to in writing prior to the filing thereof on the grounds that such amendment or supplement contains a material inaccuracy with respect to the description of such Registering Stockholder.
(b) If LeukoSite has delivered preliminary or final prospectuses to the Registering Stockholders and after having done so the prospectus is amended or supplemented to comply with the requirements of the Securities Act as described in Section 6.3(a) hereof, LeukoSite shall promptly notify the Registering Stockholders and, if anyrequested by LeukoSite, the Registering Stockholders shall immediately cease making offers or sales of shares under the Stockholder Registration Statement and return all prospectuses to LeukoSite. LeukoSite shall promptly provide the Registering Stockholders with revised prospectuses and, following receipt of the securities being sold by such Selling Shareholder revised prospectuses, the Registering Stockholders shall be free to resume making offers and sales under the Stockholder Registration Statement.
(c) LeukoSite shall furnish to each requesting Registering Stockholder such number of conformed copies of such registration statement the Stockholder Registration Statement and of each such amendment and supplement thereto (in each case including all exhibitsexhibits thereto), such number of copies of the prospectus contained included in such registration statement Stockholder Registration Statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 such number of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriterdocuments, if any, incorporated by reference in such Stockholder Registration Statement or prospectus, as such requesting Registering Stockholder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;request.
(ivd) LeukoSite shall use reasonable its best efforts to register or qualify such Registrable Securities the Merger Common Shares covered by such registration statement the Stockholder Registration Statement under such other the securities laws or "blue sky sky" laws of such jurisdictions states as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder Registering Stockholders shall reasonably request; PROVIDED, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderHOWEVER, except that the Company LeukoSite shall not for any such purpose be required in connection with this paragraph (b) to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file execute a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company LeukoSite shall use pay the expenses incurred by it in complying with its reasonable best efforts to take obligations under this Section 6, including all action necessary registration and filing fees, exchange listing fees, fees and expenses of counsel for LeukoSite, and fees and expenses of accountants for LeukoSite, but excluding (i) any brokerage fees, selling commissions or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated underwriting discounts incurred by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws Registering Stockholders in connection with sales under the foregoing, Stockholder Registration Statement and take all reasonable action necessary or appropriate to restructure (ii) the Shares at the request fees and expenses of the Investor Shareholders holding a majority of the Total Voting Power held any counsel retained by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyRegistering Stockholders.
Appears in 3 contracts
Sources: Merger Agreement (Leukosite Inc), Merger Agreement (Leukosite Inc), Merger Agreement (Leukosite Inc)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts by the provisions hereof to effect the registration of any shares of Registrable Securities under the Securities Act as provided in Section 5.1Act, Section 5.2 and Section 5.3 the Company shall will, as expeditiously as reasonably possible:
(ia) prepare and file with the SEC Commission a registration statement with respect to effect such registration securities and thereafter use 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 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 to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”"Sellers") copies of all such documents proposed to be filed, which documents will be subject to the review filings and comment Commission letters of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholderscomment;
(iib) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until the latest of: (i) six months after the latest exercise period of the Warrants; (ii) twelve months after the Maturity Date of the Note or Put Note; or (iii) two years after the Closing Date, or Put Closing Date and to comply with the provisions of the Securities Act with respect to the disposition of all securities of the Registrable Securities covered by such registration statement, in each case statement in accordance with the terms Seller's intended method of this Article Vdisposition set forth in such registration statement for such period;
(iiic) furnish to the Seller, and to each Selling Shareholder and each underwriter, underwriter if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, persons reasonably may reasonably request in order to facilitate the public sale or other their disposition of the Registrable Securities owned securities covered by such Selling Shareholderregistration statement;
(ivd) use reasonable its best efforts to register or qualify such the Seller'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 Shareholder the Seller and any in the case of an underwritten public offering, the managing underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderprovided, except however, that the Company shall not for any such purpose be required to (A) 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 so qualified or to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(ve) use reasonable best 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable any securities exchange on which the Selling Shareholder(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 immediately notify the Seller and each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with under such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xig) use reasonable best efforts to prevent, and obtain make available for inspection by the withdrawal ofSeller, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts underwriter participating in any distribution pursuant to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy and any attorney, accountant or other agent retained by the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statementSeller or underwriter, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offeringall publicly available, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, non-confidential financial and other information meetings records, pertinent corporate documents and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report properties of the Company, and such other reports cause the Company's officers, directors and documents so filed or furnished employees to supply all publicly available, non-confidential information reasonably requested by the Company as such holder may request seller, underwriter, attorney, accountant or agent in connection with the sale of Registrable Securities without registrationsuch registration statement.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 3 contracts
Sources: Subscription Agreement (Tirex Corp), Subscription Agreement (Ivg Corp), Subscription Agreement (Vianet Technologies Inc)
Registration Procedures. (a) If In connection with each registration statement prepared pursuant to this Article V pursuant to which Registrable Securities will be offered and whenever sold, and in accordance with the intended method or methods of distribution of the Registrable Securities as described in such registration statement, the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleshall:
(i) use its reasonable best efforts to, as promptly as reasonably practicable, prepare and file with the SEC a registration statement to effect such on an appropriate registration form of the SEC and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant under the Securities Act as promptly as reasonably practicable after the filing thereof, which registration statement shall comply as to form in all materials respects with 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 requirements of the registration statement relating theretoapplicable form and include all financial statements required by such form to be filed therewith; provided, further provided that within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will shall furnish to the one counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) Stockholder draft copies of all such documents proposed to be filedfiled at least five Business Days prior to such filing (other than documents filed by the Company to satisfy its reporting obligations under the Exchange Act that are incorporated by reference in such registration statement), which documents will be subject to the reasonable review and comment of such counselthe Stockholder and its agents and Representatives and the underwriters, and such review and comment to be conducted with reasonable promptness if any, and the Company shall not file any such documents amendment or supplement to a Takedown Prospectus Supplement or Demand Registration Statement to which the Selling Shareholders (representing a majority of Stockholder or the Registrable Securities included in such registration) underwriters, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with use its reasonable best efforts to, as promptly as reasonably practicable, furnish without charge to the SEC such amendments and supplements to such registration statement Stockholder, 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 securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriterunderwriters, if any, at least one conformed copy of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each post-effective amendment and or supplement thereto (in each case including all exhibitsschedules and exhibits but excluding all documents incorporated or deemed incorporated therein by reference, unless requested in writing by the Stockholder or an underwriter, except to the extent such exhibits and schedules are currently available via the SEC’s Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”), ) and such number of copies of the prospectus contained registration statement and each amendment or supplement thereto (excluding exhibits and schedules) and the summary, preliminary, final, amended or supplemented prospectuses included 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 Stockholder or such other documents as such Selling Shareholder and underwriter, if any, underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned being sold by the Stockholder or its Subsidiary (the Company hereby consents to the use in accordance with the U.S. securities laws of such registration statement (or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) by the Stockholder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Selling Shareholderregistration statement or prospectus);
(iii) use its reasonable best efforts to keep such registration statement effective until (A) with respect to a registration statement filed pursuant to Section 5.1 hereof, such time as all of such Registrable Securities subject thereto shall have been disposed of in accordance with such registration statement and (B) with respect to any other registration statement, the date that is 45 days after the date such registration statement is initially declared effective (or such shorter period as shall terminate when all of the securities covered by the registration statement have been disposed or withdrawn, or if such registration statement relates to an Underwritten Offering, such longer period as, in the opinion of counsel for the underwriters for such offering, a prospectus is required under the Securities Act to be delivered in connection with sales of Registrable Securities by an underwriter or dealer (but not in excess of 90 days) (the “Effective Period”), prepare and file with the SEC such amendments, post-effective amendments and supplements to the registration statement and the prospectus as may be necessary to maintain the effectiveness of the registration for the Effective Period) and cause the prospectus (and any amendments or supplements thereto) to be filed with the SEC;
(iv) use its reasonable best efforts to to, as promptly as reasonably practicable, 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 in the United States as any Selling Shareholder and any underwriter of are reasonably necessary, keep such registrations or qualifications in effect for so long as the securities being sold by such Selling Shareholder 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 Shareholder and the Stockholder, its Subsidiary or any underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions; provided, except however, that in no event shall 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 not, but for the requirements of this clause subparagraph (iv) ), be obligated required to be so qualified, (B) execute or file any general consent to service of process under the laws of any jurisdiction, (C) take any action that would subject it to service of process in suits other than those arising out of the offer and sale of the securities covered by the registration statement, or (D) subject itself to taxation in any such jurisdiction or where it would not otherwise be obligated to do so, but for the requirements of this subparagraph (C) file a general consent to service of process in any such jurisdictioniv);
(v) use its reasonable best efforts to to, as promptly as reasonably practicable, cause such all Registrable Securities covered by such registration statement, if any, to be listed (after notice of issuance) on each the NYSE or on the principal securities exchange or interdealer quotation system on which similar securities issued by the Company are Common Stock is 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 Marketquoted;
(vi) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder the Stockholder and the managing underwriter or underwriters, if any, of the following events:
after becoming aware thereof, (A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to when the registration statement or any Free Writing Prospectus utilized in connection therewithrelated prospectus or any amendment or supplement thereto has been filed, and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
, (B) of any request by the SEC or any other Government Entity U.S. state securities authority for amendments or supplements to the registration statement or the related prospectus or for additional information;
, (C) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any 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, or (E) within the Effective Period of the happening of any event or the existence of any fact as a result of which the registration statement or any post-effective amendment thereto, prospectus or any amendment or supplement thereto, or any document (including the documents incorporated by reference therein) contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(vii) during the Effective Period, use its reasonable best efforts to obtain, as promptly as reasonably practicable, the withdrawal of any order enjoining or suspending the use or effectiveness of the registration statement or any post-effective amendment thereto or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(viii) use its reasonable best efforts to deliver promptly to the Stockholder and the managing underwriters, if any, copies of all correspondence between the SEC and the Company, its counsel or its auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement (except to the extent such correspondence is currently available via ▇▇▇▇▇) and permit the Stockholder to do such investigation with respect to information contained in or omitted from the registration statement as it deems reasonably necessary for the purpose of conducting due diligence with respect to the Company;
(ix) use its reasonable best efforts to, as promptly as reasonably practicable, provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(x) notify use its reasonable best efforts to cooperate with the Stockholder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold under the registration statement in a form eligible for deposit with the Depository Trust Corporation not bearing any restrictive legends (other than as required by the Depository Trust Corporation) and not subject to any stop transfer order with any transfer agent, and cause such Registrable Securities to be issued in such denominations and registered in such names as the managing underwriters, if any, may request in writing or, if not an Underwritten Offering, in accordance with the instructions of the Stockholder, in each Selling Shareholdercase at least two Business Days prior to any sale of Registrable Securities;
(xi) in the case of an Underwritten Offering, at use its reasonable best efforts to, as promptly as reasonably practicable, enter into an underwriting agreement customary in form and substance (taking into account the Company’s prior underwriting agreements) for firm commitment underwritten secondary offerings of the nature contemplated by the applicable registration statement, and which underwriting agreement shall include a customary lock-up provision with respect to the Company;
(xii) use its reasonable best efforts to, as promptly as reasonably practicable, obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants (and, if necessary, any time when a prospectus relating thereto other independent certified public accountants addressed to the underwriters in such Underwritten Offering of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the registration statement) in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters in connection with an offering of the nature contemplated by the applicable registration statement;
(xiii) use its reasonable best efforts to, as promptly as reasonably practicable, provide to counsel to the Stockholder and to the managing underwriters, if any, and no later than the time of filing of any document which is to be incorporated by reference into the registration statement or prospectus (after the initial filing of such registration statement), copies of any such document;
(xiv) use its reasonable best efforts to cause its officers to provide reasonable assistance with the marketing of the Registrable Securities covered by the registration statement, including, at the recommendation or request of the underwriters, making themselves available to participate in a reasonable and customary number of “road-show,” “one-on-one,” and other customary marketing activities in such domestic locations as reasonably recommended by the underwriter(s);
(xv) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and any applicable national securities exchange; and
(xvi) comply with the requirements of Rule 144(c)(1) with respect to public information about the Company.
(b) In the event that the Company would be required, pursuant to Section 5.7(a)(vi)(E), to notify the Stockholder or the managing underwriter or underwriters, if any, of the happening of any event specified therein, the Company shall, subject to Section 5.3(b), as promptly as practicable, prepare and furnish to the Stockholder and to each such underwriter a reasonable number of copies of a supplement or amendment to the applicable registration statement, prospectus or prospectus supplement so that, as thereafter delivered to purchasers of Registrable Securities that have been registered pursuant to this Agreement, such prospectus 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, in the light of the circumstances under which they were made, not misleading. The Stockholder agrees that, upon receipt of any notice from the Company pursuant to Section 5.7(a)(vi)(E), it shall, and shall use its reasonable best efforts to, cause any sales or placement agent or agents for the Registrable Securities and the underwriters, if any, to forthwith discontinue disposition of the Registrable Securities until such Person shall have received copies of such amended or supplemented prospectus and, if so directed by the Company, to destroy all copies, other than permanent file copies, then in its possession of the prospectus (prior to such amendment or supplement) covering such Registrable Securities as soon as practicable after the Stockholder’s receipt of such notice.
(c) If requested by the managing underwriter for an Underwritten Offering (primary or secondary) of any equity securities of the Company, the Stockholder agrees not to effect any Transfer of any Registrable Securities, including any sale pursuant to Rule 144 under the Securities Act, upon discovery that, or upon the happening and not to effect any Transfer of any event other equity security of the Company (in each case, other than as part of such underwritten public offering) during the ten days prior to, and during the 90-day period (or such longer period as the Stockholder agrees with the underwriter of such offering) beginning on, the consummation of any underwritten public offering covered by a registration statement referred to in Section 5.4.
(d) The Stockholder shall furnish to the Company in writing such information regarding the Stockholder and its Subsidiaries and their intended method of distribution of the Registrable Securities as the Company may from time to time reasonably request in order for the Company to comply with its obligations under all applicable securities and other laws and to ensure that the prospectus relating to such Registrable Securities conforms to the applicable requirements of the Securities Act and the rules and regulations thereunder, and such other information reasonably requested by the Company in connection with the performance of its obligations hereunder. The Stockholder shall promptly notify the Company of any inaccuracy or change in information previously furnished by the Stockholder or its Subsidiary to the Company or of the occurrence of any event, in either case as a result of which, which any prospectus relating to the prospectus included in such registration statement, as then in effect, includes Registrable Securities contains or would contain an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at the request of any Selling Shareholder, and promptly prepare and 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 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon In the request case of any Investor Shareholder Underwritten Offering pursuant to ensure that Class A Shareholders area Takedown Prospectus Supplement or a Demand Registration Statement, from and after or in the date hereofcase of a registration under Section 5.4 if the Company has entered into an underwriting agreement in connection therewith, able all shares of Common Stock to convert their Class A Shares into Class P Shares be included in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding)offering or registration, as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelycase may
Appears in 3 contracts
Sources: Stockholder's Agreement (Horton D R Inc /De/), Stockholder Agreement (Horton D R Inc /De/), Stockholder's Agreement (Forestar Group Inc.)
Registration Procedures. (a) If and whenever the Company is ----------------------- required by the provisions of this Agreement to use all commercially reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possible:
(ia) prepare and file 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 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 Stockholders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable form and thereafter include all financial statements required by the SEC to be filed therewith, and the Company shall use all commercially 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 are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), or comparable statements under securities or "blue sky" laws of any jurisdiction, the Company will furnish furnish, if requested, to one counsel for the counsel Stockholders participating in the planned offering (selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”Major Stockholder) 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 such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents registration statement or amendment thereto or any prospectus or supplement thereto to which the Selling Shareholders (representing Stockholders of a majority of the Registrable Securities included in covered by such registration) objectregistration statement or the underwriters, if any, shall reasonably object in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for such period (which shall not be required to exceed 150 days in the case of a registration pursuant to Section 2.1 or 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement;
(iiic) furnish furnish, without charge, to each Selling Shareholder seller of such Registrable Securities and each underwriter, if any, of the securities being sold covered by such Selling Shareholder 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder 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 Selling Shareholderseller (the Company 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 all commercially reasonable 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 Shareholder and sellers of Registrable Securities or any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions, except that in no event shall 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 not, but for the requirements of this clause paragraph (iv) d), be obligated required to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Stockholder 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 Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for and each Selling Shareholder and managing underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(Ai) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, has been filed and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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 sky" laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, 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 Shareholderoffering shall cease to be true and correct in all material respects, and if the notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a 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;
(xif) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to Selling Shareholdersits security holders, as soon as reasonably practicablepracticable after the effective date of the registration statement (and in any event within 16 months thereafter), an earnings statement of the Company (which need not be audited) covering the period of at least twelve (12) months, but not more than eighteen (18) months, consecutive 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;
(xiiih) use its reasonable best efforts provide and cause to assist Selling Shareholders who made be maintained a request to transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the Company to provide for a third party “market maker” for the Class P Shareseffective date of such registration statement;
(xivi) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Stockholders of a majority of the Registrable Securities or the Major Stockholder participating in such offering shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, provided that the underwriting agreement, if any, shall be reasonably satisfactory in form and substance to the Company. The Stockholders of the Registrable Securities which are to be distributed by such underwriters shall be parties to such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Stockholders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters and which are of the type customarily provided to institutional investors in secondary offerings; provided, however, that the Company shall not be required to make any representations or warranties with respect to written information specifically provided by a Selling Stockholder for inclusion in the registration documents;
(j) use all commercially reasonable efforts to obtain an opinion from the Company's counsel and a "cold comfort" letter from the Company's independent public accountants in customary form and covering such matters as are customarily covered by such opinions and "cold comfort" letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any, any Initiating Stockholder in the case of a Demand Registration, or to the Major Stockholder participating in any other offering, and furnish to each Stockholder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such Stockholder or underwriter;
(k) deliver promptly to counsel for the selling Stockholders participating in the offering and each 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, other than those portions of any such correspondence or memoranda which contain information subject to attorney-client privilege with respect to the Company, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by any seller of such 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 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) use all commercially reasonable 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 the Company's 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 which 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 Stockholders of Registrable Securities 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 selling Stockholders prior to the filing thereof as counsel for such selling Stockholders or underwriters may reasonably request;
(p) furnish to counsel for the selling Stockholders participating in the offering and the managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(q) cooperate with the Selling Shareholders selling Stockholders 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) 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 in accordance with the managing underwriter or such Selling Shareholders may request and keep available and make available underwriting agreement prior to any sale of Registrable Securities to the Company’s underwriters or, if not an underwritten offering, in accordance with the instructions of the selling Stockholders of Registrable Securities at least three business days prior to any sale of Registrable Securities and instruct any transfer agent prior and registrar of Registrable Securities to the effectiveness of such registration statement a supply of such certificatesrelease any stop transfer orders in respect thereof; and
(xvr) take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the case disposition of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the such Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require as a condition precedent to the Company's obligations under this Section 2.4 that each Selling Shareholder and each underwriter, if any, seller of Registrable Securities as to which any registration is being effected furnish the Company in writing such information regarding each Selling Shareholder 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 request, provided that such information required by such registration statement.
(b) Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to shall be made by or through an underwriter, the Company, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters used only in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements registration. Each Stockholder of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder Registrable Securities agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 5.6(a)(x)2.4, such Selling Shareholder shall forthwith Stockholder will discontinue such Selling Shareholder’s Stockholder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s Stockholder's receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 5.6(a)(x) 2.4 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 Shareholder’s Stockholder'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 shall give any such notice, any the applicable one hundred twenty period mentioned in paragraph (120b) day period during which such registration statement must remain effective pursuant to 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 written such notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all each seller of any Registrable Securities covered by such Selling Shareholders 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 shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 registration statement or comparable statement under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish "blue sky" laws refers to any holder so long Stockholder by name or otherwise as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements Stockholder of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report any securities of the Company, then such Stockholder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to such other reports Stockholder and documents so filed or furnished the Company, to the effect that the holding by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer Stockholder of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall securities is not take or cause to be taken (including through construed as a recommendation by such Stockholder of the investment quality of the Company’s transfer agent) 's securities covered thereby and that such holding does not imply that such Stockholder will assist in meeting any action inconsistent with the foregoing. Without limiting the generality future financial requirements of the foregoingCompany, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time (ii) in the event that any applicable law adversely affects such reference to such Stockholder by name or otherwise is not in the ability judgment of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding)Company, as contemplated advised by counsel, required by the Charter; provided, that Securities Act or any similar federal statute or any state "blue sky" or securities law then in such eventforce, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, deletion of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyreference to such Stockholder.
Appears in 3 contracts
Sources: Registration Rights Agreement (MCG Capital Corp), Registration Rights Agreement (MCG Capital Corp), Registration Rights Agreement (MCG Capital Corp)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 2.1 and 2.2 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective pursuant effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall as promptly as practicable furnish such documents to the terms Purchasers and each underwriter, if any, participating in the offering of this Agreementthe Registrable Securities and their respective counsel, which documents will be subject to the review and comments of the Purchasers, each underwriter and their respective counsel; and provided, further, 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) notify the Purchasers of the Commission's requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the terms intended method of this Article Vdistribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 365 days;
(iiic) furnish furnish, without charge, to each Selling Shareholder the Purchasers and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as the Purchasers and such Selling Shareholder and underwriter, if any, underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use its reasonable best efforts (i) 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 Shareholder and any underwriter States of the securities being sold by such Selling Shareholder United States of America where an exemption is not available and as the Purchasers or any managing underwriter shall reasonably request, (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 may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Purchasers to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling Shareholderthe Purchasers, 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 subsection (ivd) be obligated to be so qualified, (B) subject itself qualified or to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(ve) use 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 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 reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to enable the Selling Shareholder(s) thereof Company and counsel to the Purchasers to consummate the disposition of such Registrable Securities;
(viif) furnish to the Purchasers and each underwriter, if any, participating in connection with an Underwritten Offeringthe offering of the securities covered by such registration statement, obtain for each Selling Shareholder and underwriter:
a signed counterpart of (Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(Bii) a “"comfort” " letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s 's or any other entity's financial statements included or incorporated by reference 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' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the legal opinion, such other legal matters;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixg) promptly notify in writing the Purchasers and each Selling Shareholder and the underwritersmanaging underwriter, if any, participating in the offering of the following events:
securities covered by such registration statement (Ai) the filing of the when such registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the such registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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 any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, andin the light of the circumstances under which they were made, and in the case of this clause (v), at the request of any Selling Shareholder, the Purchasers promptly prepare and furnish to such seller the Purchasers and each managing underwriter, if any, participating in the offering of the Registrable Securities, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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; and (vi) at any time when the representations and warranties of the Company contemplated by Section 2.4(a) or (b) hereof cease to be true and correct;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiih) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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 promulgated thereunder, and promptly furnish to the Purchasers a copy of any amendment or supplement to such registration statement or prospectus;
(xiiii) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration;
(i) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of cause all Registrable Securities covered by such registration statement a supply to be listed on the NASDAQ "national market system" or the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such certificates; and
Registrable Securities is then permitted under the rules of such exchange, or (xvii) in the case of an Underwritten Offeringif no similar securities are then so listed, cause the appropriate officers of the Company to use its reasonable best efforts to facilitate (x) cause all offeringssuch Registrable Securities to be listed on a national securities exchange or (y) failing that, including secure designation of all such Registrable Securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or (z) failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to preparing marketing and offering materialssuch shares with the National Association of Securities Dealers, preparing, making presentations at, and otherwise participating in any “road shows” Inc.;
(domestic and foreignk) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts deliver promptly to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant counsel to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder Purchasers and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to such registration statement;
(l) use its reasonable 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, no later than the effective date of the registration statement; and
(n) in connection with any underwritten public offering, make available its senior executive officers, directors and chairman and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company's business) in their marketing of Registrable Securities. The Company may require the Purchasers to furnish the Company in writing such information regarding each Selling Shareholder or underwriter the Purchasers and the distribution of such the 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees writing. The Purchasers agree that upon receipt of any written notice from the Company of the happening of any event of the kind described in paragraph (g)(iii) or (v) of this Section 5.6(a)(x)2.3, such Selling Shareholder shall forthwith the Purchasers will, to the extent appropriate, discontinue such Selling Shareholder’s their disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until to such Selling Shareholder’s Registrable Securities until, in the case of paragraph (g)(v) of this Section 2.3, their receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (g)(v) of this Section 5.6(a)(x) 2.3 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 Shareholder’s possession their possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice relating notice. If the disposition by the Purchasers of their securities is discontinued pursuant to such Registrable Securities. In the event foregoing sentence, the Company shall give such notice, any applicable one hundred twenty (120) day extend the period during which such of effectiveness of the registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all such Selling Shareholders the Purchasers shall receive such a have received copies of the supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
contemplated by paragraph (dg)(v) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirementsthis Section 2.3; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action so extend such period, the Purchasers' request pursuant to this Section 5.6(e) that would result in the failure following which such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, registration statement was filed shall not be counted for purposes of the Investor Shareholders, requests for registration to which the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyPurchasers are entitled pursuant to Section 2.1 hereof.
Appears in 3 contracts
Sources: Registration Rights Agreement (Xo Communications Inc), Registration Rights Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp), Registration Rights Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp)
Registration Procedures. (a) If and whenever In connection with any registration effected pursuant to the Company is required to use reasonable best efforts to effect the registration terms of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company Packaging Dynamics shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC SEC, not later than forty-five (45) days after receipt of a request to file a registration statement with respect to effect Registrable Securities, a registration statement of any form for which Packaging Dynamics then qualifies and which counsel for Packaging Dynamics deems appropriate for the sale of such registration and thereafter Registrable Securities in accordance with the intended method of distribution thereof. Packaging Dynamics shall use reasonable its 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 are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the Packaging Dynamics shall (i) provide counsel selected by the Shareholders which are including holder or holders of a majority of the aggregate outstanding shares of Registrable Securities in to be registered pursuant to such registration (“Selling Shareholders”"Holders' Counsel") copies and any other Inspector (as defined below) with an opportunity to participate in the preparation of all such documents proposed registration statement and each prospectus included therein (and each amendment or supplement thereto) to be filedfiled with the SEC, which documents will shall be subject to the review of Holders' Counsel, and comment (ii) notify Holders' Counsel and the holders of Registrable Securities of any stop order issued or threatened by the SEC and take all reasonable action required to prevent the entry of such counsel, and such review and comment stop order or to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersremove it if entered;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until the earliest to occur of (i) the expiration of twelve (12) months and to (ii) the date all Registrable Securities included therein have been sold and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such registration statement;
(iiic) furnish to each Selling Shareholder Holder and each underwriterto the Holders' Counsel, if anyprior to filing a registration statement, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement as proposed to be filed, and thereafter such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibitsexhibits thereto), such number of copies of the prospectus contained included in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, the Holders' Counsel may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderthe holders of Registrable Securities;
(ivd) use 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 the Holders' Counsel reasonably request and do any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, all other acts and take any other action things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the holders of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned held by such Selling Shareholderholders of Registrable Securities; provided, except however, that the Company Packaging Dynamics shall not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualifiedd), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) file a general consent to general service of process in any such jurisdiction;
(ve) use 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of Packaging Dynamics to enable the Selling Shareholder(s) thereof holders of Registrable Securities to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) 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;
(xf) notify in writing each Selling Shareholderthe holders of Registrable Securities, at any time when a prospectus relating thereto to the registration statement is required to be delivered under the Securities Act, upon discovery thatof, or upon 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 under which they were made. In such instance, and, at the request of any Selling Shareholder, Packaging Dynamics promptly shall prepare and furnish file 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 any 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;
(xig) enter into and perform customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including using its reasonable efforts to cause officers of Packaging Dynamics to participate in "road shows" and other information meetings organized by the Approved Underwriter or the Company Underwriter;
(h) make available for inspection by any managing underwriter participating in any disposition pursuant to such registration statement, Holders' Counsel and any accountant or other agent retained by the holder or holders of a majority of the aggregate outstanding shares of Registrable Securities to be registered hereunder or any managing underwriter (collectively, the "Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of Packaging Dynamics and its subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause Packaging Dynamics' and its subsidiaries' officers, directors and employees, and the independent public accountants of Packaging Dynamics, to supply all information reasonably requested by any such Inspector in connection with such registration statement. Records and other information that Packaging Dynamics 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 Records or other information is necessary to avoid or correct a misstatement or omission in the registration statement, (ii) the release of such Records or other information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) the information in such Records or such other information has been made generally available to the public by someone other than such Inspector. Packaging Dynamics shall not be required to disclose any such confidential information or Records until and unless the Inspectors shall have entered into customary confidentiality agreements with Packaging Dynamics with respect thereto. Each holder of Registrable Securities agrees that it shall, upon learning that disclosure of such Records or other information is sought in a court of competent jurisdiction, give notice to Packaging Dynamics and allow Packaging Dynamics, at Packaging Dynamics' expense, to undertake appropriate action to prevent disclosure of the Records or other information deemed confidential;
(i) in the event such sale is pursuant to an underwritten offering, use reasonable its best efforts to preventobtain a "cold comfort" letter, dated as of a date reasonably proximate to the date of the underwriting agreement and obtain the withdrawal ofdate of the closing under the underwriting agreement, any order suspending from Packaging Dynamics' independent public accountants in customary form and covering such matters of the effectiveness of such registration statementtype customarily covered by "cold comfort" letters as Holders' Counsel or the managing underwriter reasonably request;
(xiij) use its best efforts to obtain, at the request of Holders' Counsel on the date such securities are delivered to the underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date the registration statement with respect to such securities becomes effective, an opinion of counsel representing Packaging Dynamics for the purposes of such registration, addressed to the underwriters, if any, and to the holders of Registrable Securities, covering such legal matters with respect to the registration in respect of which such opinion is being given as the Holders' Counsel and the underwriters, if any, may reasonably request and are customarily included in such opinions;
(k) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, SEC and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve but no later than fifteen (1215) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter months after the effective date of such the registration statement, an unaudited earnings statement covering a period of twelve (12) months beginning within three (3) months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiiil) use its reasonable best efforts to assist Selling Shareholders who made a request keep each holder of Registrable Securities advised in writing as to the Company to provide for a third party “market maker” for the Class P Sharesinitiation and progress of any registration under Section 2, 3 or 4 hereunder;
(xivm) provide officers' certificates and other customary closing documents;
(n) notify each seller of such Registrable Securities and each underwriter participating in the disposition of such Registrable Securities of any stop order or other suspension of effectiveness of the registration statement;
(o) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment;
(p) cooperate with the Selling Shareholders sellers of such Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of book-entry securities or, if applicable, of certificates (which shall not bear bearing any restrictive legends unless required under applicable lawlegends) representing securities securities, to be sold under any the registration statement, statement and enable such securities to be in such denominations or amounts, as the case may be, and registered in such names as the managing underwriter or underwriters, if any, or such Selling Shareholders sellers may request request;
(q) cooperate with each seller of Registrable Securities and keep available and make available to each underwriter participating in the Company’s transfer agent prior to the effectiveness disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD");
(r) use all reasonable efforts to take all other steps necessary to effect the registration statement a supply of such certificatesthe Registrable Securities contemplated hereby; and
(xvs) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use all reasonable best efforts to facilitate cause all offerings, including with respect such Registrable Securities to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized be listed on each securities exchange on which similar securities issued by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the CompanyPackaging Dynamics are then listed. The Company Packaging Dynamics may require each Selling Shareholder and each underwriter, if any, holder of Registrable Securities to furnish the Company in writing to Packaging Dynamics such information regarding each Selling Shareholder or underwriter and the distribution of such Registrable Securities securities as the Company Packaging Dynamics 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company Packaging Dynamics of the happening of any event of the kind described in Section 5.6(a)(x)6(f) hereof, such Selling Shareholder holder of Registrable Securities shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x6(f) hereof and, if so directed by the CompanyPackaging Dynamics, such holder shall deliver to the Company, Packaging Dynamics (at the Company’s Packaging Dynamics' expense, ) all copies, other than permanent file copies, copies then in such Selling Shareholder’s possession holder'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 Packaging Dynamics shall give any such notice, any applicable one hundred twenty (120) day Packaging Dynamics shall extend the period during which such registration statement must remain shall be maintained effective pursuant to this Agreement shall be extended (including, without limitation, the period referred to in Section 6(b)) by the number of days during of the period from and including the date of the giving of a written such notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x6(f) hereof to and including the date when all such Selling Shareholders the holder of Registrable Securities shall receive such a have received the copies of the supplemented or amended prospectus contemplated by and such prospectus shall have been filed with meeting the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationSection 6(f).
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 3 contracts
Sources: Registration Rights Agreement (DCBS Investors LLC), Registration Rights Agreement (Packaging Dynamics Corp), Registration Rights Agreement (Packaging Dynamics Corp)
Registration Procedures. (a) If and whenever Whenever the Company is required by the provisions of this Agreement to use commercially reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall Company, as expeditiously as reasonably possible:
(ia) shall prepare and file with the SEC a the requisite registration statement statement, which shall comply as to effect such registration form in all material respects with the requirements of the applicable form and thereafter shall include all financial statements required by the SEC to be filed therewith, and 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 within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), or comparable statements under securities or blue sky laws of any jurisdiction, or any Issuer Free Writing Prospectus related thereto, the Company will furnish to one counsel for the counsel Participating Holders (selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”Majority Participating Holders) and to the lead managing underwriter, 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 such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents registration statement or amendment thereto, any prospectus or supplement thereto or any Issuer Free Writing Prospectus related thereto to which the Selling Shareholders (representing a majority of Majority Participating Holders or the Registrable Securities included in such registration) underwriters, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders);
(iib) shall 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 for such period as any Participating Holder 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition by the Participating Holder(s) thereof set forth in such registration statement;
(iiic) furnish shall furnish, without charge, to each Selling Shareholder Participating Holder and each underwriter, if any, of the securities being sold covered by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of such registration statement, each amendment thereto, the prospectus contained included in such registration statement (including statement, each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Issuer Free Writing Prospectus”) Prospectus utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Acttherewith, all in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder Participating Holder and underwriter, if any, underwriter reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderParticipating Holder, and shall consent to the use in accordance with all applicable law of each such registration statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer 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;
(ivd) shall use commercially reasonable 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 Shareholder and Participating Holder or any underwriter of the securities being sold by such Selling Shareholder managing underwriter, if any, reasonably shall reasonably request, and take do any and all other action which acts and things that may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter Participating Holder or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions, except that in no event shall the Company shall not for any such purpose be required (i) to (A) 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 2.4(d), it would not be obligated required to be so qualified, (Bii) to subject itself to taxation in any such jurisdiction or (Ciii) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on shall 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriterany:
(Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or thereto, any post-effective amendment to the registration statement or any Issuer Free Writing Prospectus utilized in connection therewith, has been filed and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
(Bii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
(Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and;
(Div) 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;
(xv) notify in writing each Selling Shareholder, 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, the prospectus included in related thereto, any document incorporated therein by reference, any Issuer 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 notification relates to an event described in clause (v), the Company, subject to the provisions of any Selling ShareholderSection 2.1(c), promptly shall prepare and file with the SEC, and furnish to such each seller and each underwriter, if any, a reasonable number of copies of 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 therein, in the light of the circumstances under which they were made, not misleading;
(xif) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to shall comply with all applicable rules and regulations of the SEC, and make generally available to Selling Shareholdersits security holders, as soon as reasonably practicablepracticable after the effective date of the registration statement (and in any event within 90 days after the end of the 12-month period described hereafter), an earnings statement of the Company statement, which need not be audited, covering the a period of at least twelve (12) months, but not more than eighteen (18) months, 12 consecutive 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;
(xiiig) shall use its commercially reasonable best efforts to assist Selling Shareholders who made cause all Registrable Securities covered by such registration statement to be authorized to be listed on a request to national securities exchange if shares of the Company to provide for a third party “market maker” for particular class of Registrable Securities are at that time, or will be immediately following the Class P Sharesoffering, listed on such exchange;
(xivh) shall 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) shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders 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 that 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);
(j) shall use commercially reasonable efforts to obtain an opinion from the Company’s counsel and a “comfort” letter from the Company’s independent public accountants in customary form and covering such matters as are customarily covered by such opinions and “comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any;
(k) shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement;
(l) shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(m) shall make reasonably available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters, taking into account the needs of the Company’s businesses and the requirements of the marketing process, in the marketing of Registrable Securities in any underwritten offering;
(n) shall promptly prior to the filing of any document that is to be incorporated by reference into the registration statement or the prospectus, and prior to the filing of any Issuer Free Writing Prospectus, provide copies of such document to counsel for the Participating Holders 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 such Participating Holders or underwriters may reasonably request;
(o) shall cooperate with the Selling Shareholders Participating Holders 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) 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 in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(p) shall take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the managing underwriter disposition of such Registrable Securities;
(q) shall not take any direct or such Selling Shareholders may request and keep available and make available indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition thereunder is applicable to the Company’s transfer , the Company will take such action as is necessary to make any such prohibition inapplicable;
(r) shall cooperate with each Participating Holder and each underwriter or agent prior to participating in the effectiveness disposition of such registration statement a supply of such certificatesRegistrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(xvs) shall take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material respects with the case Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of an Underwritten Offeringa material fact or omit to state a material fact necessary to make the statements therein, cause the appropriate officers in light of the Company to use reasonable best efforts to facilitate all offeringscircumstances under which they were made, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companynot misleading. The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each Selling Shareholder and each underwriter, if any, Participating Holder as to which any registration is being effected furnish the Company such information in writing regarding such information regarding each Selling Shareholder or underwriter Participating Holder and the distribution of such its Registrable Securities as the Company may from time to time reasonably request may request; provided, that such information is necessary for the Company to complete or amend the information required by consummate such registration statement.
(b) Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to and shall be made by or through an underwriter, the Company, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters used only in connection with such offering 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 such underwriting agreements.
(c) registration. Each Selling Shareholder Participating Holder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in under Section 5.6(a)(x2.4(e)(v), such Selling Shareholder shall forthwith Participating Holder will discontinue such Selling Shareholder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling ShareholderParticipating Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securitiesprospectus. In the event the Company shall give any such notice, any the applicable one hundred twenty (120period set forth in Section 2.4(b) day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the such period from and including the date of the giving of a written such notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all such Selling Shareholders each Participating Holder shall receive such a have received the copies of the supplemented or amended prospectus and prospectus. If any such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 registration statement or comparable statement under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish “blue sky” laws refers to any holder so long Holder by name or otherwise as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements Holder of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report any securities of the Company, such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such other reports Holder and documents so filed or furnished the Company, to the effect that the holding by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer Holder of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall securities is not take or cause to be taken (including through construed as a recommendation by such Holder of the investment quality of the Company’s transfer agent) securities covered thereby and that such holding does not imply that such Holder will assist in meeting any action inconsistent with the foregoing. Without limiting the generality future financial requirements of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time (ii) in the event that any applicable law adversely affects such reference to such Holder by name or otherwise is not in the ability judgment of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding)Company, as contemplated advised by counsel, required by the Charter; provided, that Securities Act or any similar federal statute or any state “blue sky” or securities law then in such eventforce, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, deletion of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyreference to such Holder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Dole Food Co Inc), Registration Rights Agreement (Foundation Building Materials, Inc.), Registration Rights Agreement (Forterra, Inc.)
Registration Procedures. (a) If and whenever the The Company is required to will use reasonable its best efforts to effect each Registration, and to cooperate with the registration sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided in Section 5.1quickly as practicable, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(ia) subject, in the case of an Incidental Registration, to the proviso to Section , prepare and file with the SEC a the registration statement to effect such registration and thereafter use reasonable its best efforts to cause such registration statement the Registration to become and remain effective pursuant to the terms of this Agreementeffective; providedPROVIDED, 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 within a reasonable time before filing such any registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by Holders of the Shareholders which are including Registrable Securities in covered by such registration (“Selling Shareholders”) statement, their counsel, and the underwriters, if any, and their counsel, copies of all such documents proposed to be filedfiled as promptly as practicable prior thereto, which documents will be subject to the reasonable review and comment of such counselHolders, their counsel and such review and comment to be conducted with reasonable promptness the underwriters; and the Company shall will not file any registration statement or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference) to which the Selling Shareholders (representing Requisite Holders shall reasonably object after having had a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersreasonable opportunity for review and comment;
(iib) subject, in the case of an Incidental Registration, to the proviso to Section , prepare and file with the SEC such amendments and supplements post-effective amendments to such any registration statement and the any 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 securities Registrable Securities covered by such registration statement; and cause the prospectus to be supplemented by any required prospectus supplement, in each case in accordance with and as so supplemented to be filed pursuant to Rule 424 under the terms of this Article VSecurities Act;
(iiic) furnish to each Selling Shareholder Holder of Registrable Securities included in such Registration and each underwriterthe underwriter or underwriters, if any, without charge, at least one signed copy of the securities being sold by such Selling Shareholder registration statement and any post-effective amendment thereto, upon request, and such number of conformed copies of such registration statement thereof 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 Actany amendments or supplements thereto and any documents incorporated by reference therein, and such other documents as such Selling Shareholder and underwriter, if any, Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned being sold by such Selling Shareholder;
Holder (iv) it being understood that the Company consents to the use reasonable best efforts to register of the prospectus and any amendment or qualify such supplement thereto by each Holder of Registrable Securities covered by such registration statement under such other securities laws and the underwriter or blue sky laws of such jurisdictions as any Selling Shareholder underwriters, if any, in connection with the offering and any underwriter sale of the securities being sold Registrable Securities covered by such Selling Shareholder shall reasonably requestthe prospectus or any amendment or supplement thereto);
(d) notify each Holder of any stop order or other order suspending the effectiveness of any registration statement, issued or threatened by the SEC in connection therewith, and take all reasonable actions required to prevent the entry of such stop order or to remove it or obtain withdrawal of it at the earliest possible moment if entered;
(e) if requested by the managing underwriter or underwriters, if any, or any Holder in connection with any sale pursuant to a registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information relating to such underwriting as the managing underwriter or underwriters, if any, or such Holder reasonably requests to be included therein; 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;
(f) on or prior to the date on which a Registration is declared effective, use its best efforts to register or qualify, and cooperate with the Holders of Registrable Securities included in such Registration, the underwriter or underwriters, if any, and their counsel, in connection with the registration or qualification of the Registrable Securities covered by such Registration for offer and sale under the securities or "blue sky" laws of each state and other action which may jurisdiction of the United States as any such Holder or the managing underwriter, if any, reasonably requests in writing; use its 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 reasonably kept effective; and do any and all other acts or things necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in all such jurisdictions reasonably requested of the Registrable Securities owned covered by such Selling ShareholderRegistration; PROVIDED, except HOWEVER, 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 is not then so qualified or to take any action which would not but for the requirements of this clause (iv) be obligated subject it to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject;
(vg) in connection with any sale pursuant to a Registration, cooperate with the Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Securities to be sold under such Registration, and enable such Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such Holders may request;
(h) use reasonable its best efforts to cause such the 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 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 within the United States and having jurisdiction over the Company as may reasonably be necessary to enable the Selling Shareholder(s) seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Securities;
(i) enter into such agreements (including underwriting agreements in customary form) and take such other actions as the Requisite Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(viij) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriteruse its best efforts to obtain:
(Ai) an opinion at the time of counsel for effectiveness of each Registration, a comfort letter from the Company, 's independent certified public accountants covering such matters of the matters type customarily covered in opinions requested in underwritten offerings and such other matters by cold comfort letters as may be the Requisite Holders and, if applicable, the underwriters reasonably requested by such Selling Shareholder and underwriters, request; and
(Bii) a “comfort” letter (or, in at the case time of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition underwritten sale pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment theretoa bring-down comfort letter, dated as of the date of such sale, from the Company's independent certified public accountants covering such matters of the type customarily covered by comfort letters as the Requisite Holders and, if applicable, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effectiveunderwriters reasonably request;
(Bk) use its best efforts to obtain, at the time of effectiveness of each Incidental Registration and at the time of any request by the SEC sale pursuant to each Registration, an opinion or any other Government Entity for amendments or supplements opinions, reasonably acceptable to the registration statement or Requisite Holders in form and scope, from counsel for the prospectus or for additional informationCompany in customary form;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) 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;
(xl) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, Holder upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementRegistration, 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, andand promptly prepare, at file with the request of any Selling Shareholder, promptly prepare SEC and furnish to such seller each 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 or prospective 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 are made;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiim) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to Selling Shareholders, its Security holders (as soon as reasonably practicable, contemplated by section 11(a) under the Securities Act) an earnings statement satisfying the provisions of Rule 158 under the Company covering the period of at least twelve Securities Act, as applicable;
(12n) months, but provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by each Registration from and after a date not more later than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificatesRegistration; and
(xvo) in obtain and maintain the case of an Underwritten Offering, cause the appropriate officers registration of the Company to Common Stock under either section 12(b) or section 12(g) of the Exchange Act; and use reasonable its best efforts to facilitate cause all offeringsRegistrable Securities covered by each Registration to be listed subject to notice of issuance, including with respect prior to preparing marketing and offering materialsthe date of first sale of such Registrable Securities pursuant to such Registration, preparingon:
(i) either the New York Stock Exchange, making presentations atInc., and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to NASDAQ National Market; and
(ii) each other securities exchange, if any, on which the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the CompanyCommon Stock is then listed. The Company may require each Selling Shareholder and each underwriter, if any, Holder of Registrable Securities that will be included in such Registration to furnish the Company in writing with such information regarding each Selling Shareholder or underwriter and the distribution in respect of such Holder of its Registrable Securities that will be included in such Registration as the Company may from time to time reasonably request to complete or amend the information in writing and as is required by such registration statementapplicable laws or regulations.
(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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 3 contracts
Sources: Registration Rights Agreement (Flagstar Companies Inc), Registration Rights Agreement (Flagstar Companies Inc), Registration Rights Agreement (Advantica Restaurant Group Inc)
Registration Procedures. (a) If and whenever In the case of each registration effected by the Company is required pursuant to this Agreement, the Company will use reasonable its best efforts to effect the registration and sale of any Registrable Securities under in accordance with the Securities Act as provided in Section 5.1intended method of disposition thereof, Section 5.2 and Section 5.3 pursuant thereto the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a registration statement with respect to effect the securities to be registered on such registration form as the Company deems appropriate and thereafter is permitted or qualified to use, and shall use all reasonable best efforts to cause such registration statement to become and remain effective pursuant to for a period of ninety (90) days or until the terms of this Agreement; provided, however, that holders have completed the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of distribution described in the registration statement relating thereto; provided, further that within whichever first occurs or, in the case of any registration of Registrable Securities on Form S-3 which are intended to be offered on a reasonable time before filing continuous or delayed basis, for such period as shall be necessary to keep the registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including effective until all such Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersare sold;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iiic) furnish to each Selling Shareholder the holders of Registrable Securities to be included in a registration statement, at a reasonable time prior to the filing thereof with the SEC, a copy of the registration statement (and each underwriter, if any, of amendment or supplement thereto) in the securities being sold by such Selling Shareholder form the Company proposes to file the same; and 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents incident thereto, including any amendment of or supplement to the prospectus, as such Selling Shareholder and underwriter, if any, holder of Registrable Securities from time to time may reasonably request in order to facilitate the public sale or other disposition of the such Registrable Securities owned by such Selling ShareholderSeller;
(ivd) use reasonable best efforts to register or qualify such notify each seller of Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 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, and, at the request of any Selling Shareholder, promptly and 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 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 the light of the circumstances then existing;
(xie) use reasonable best efforts cause all such Registrable Securities registered pursuant hereunder to preventbe listed on each securities exchange on which similar securities issued by the Company are then listed; and provide a transfer agent and registrar and a CUSIP number for all such Registrable Securities, and obtain in each case not later than the withdrawal of, any order suspending the effectiveness effective date of such registration statementregistration;
(xiif) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s '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;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificatesAct; and
(xvg) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including connection with respect to preparing marketing and any underwritten offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement))a registration statement filed pursuant to Section 1 or 3 hereof, the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 customary underwriting provisions so as to effect the offer and agreements customarily included (but not inconsistent with the covenants and agreements sale of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 3 contracts
Sources: Registration Rights Agreement (IHL Investments, LLC), Registration Rights Agreement (Harris Corp /De/), Registration Rights Agreement (Teltronics Inc)
Registration Procedures. (a) If and whenever the Company is required to file a registration statement with respect to, or to use its reasonable best efforts to effect or cause the registration of of, any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a registration statement on an appropriate form with respect to effect such Registrable Securities and, if such registration and thereafter statement is not an automatic effective registration statement, use 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 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 within a reasonable time before filing such a registration statement or prospectus, or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to counsel for the counsel selected by the Shareholders which are including sellers of Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective 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, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition 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 furnish to counsel for the sellers of Registrable Securities covered by such registration statement copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iiic) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder 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, excluding 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(ivd) use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderseller, 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 where, but for the requirements of this clause subsection (iv) d), it would not be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case 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 public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholdersuch 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiig) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits Security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve practicable (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter ) after the effective date of such the registration statement, which an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiiih) (i) use its reasonable best efforts to assist Selling Shareholders who made a request 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 (ii) use its reasonable best efforts to provide a transfer agent and registrar for a third party “market maker” for such Registrable Securities covered by such registration statement not later than the Class P Shareseffective date of such registration statement;
(xivi) 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 as reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement, 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 or any Free Writing Prospectus utilized in connection therewith 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 Selling Shareholders 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 lawlegends) 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 Selling Shareholders agent, if any, or the Holders may request and keep available and request;
(q) use its reasonable best efforts to make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate executive officers of the Company to use reasonable best efforts to facilitate all offerings, including participate with respect to preparing marketing the holders of Registrable Securities and offering materials, preparing, making presentations at, and otherwise participating any underwriters in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case that may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as be reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters holders in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements distribution of the Company contained herein) by an issuer of common stock in such underwriting agreements.Registrable Securities;
(cr) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available obtain for delivery to the holders of Registrable Securities being registered and to the benefits of Rule 144 under the Securities Act and any other rule underwriter or regulation of the SEC that may at any time permit a holder to sell securities of agent an opinion or opinions from counsel for the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor in customary form and in form), the Company shall:
(i) make substance and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject scope reasonably satisfactory to such reporting requirementsholders, underwriters or agents and their counsel; and
(iiis) furnish to any holder so long as cooperate with each seller of Registrable Securities and each underwriter or agent participating in the holder owns disposition of such Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request their respective counsel in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause filings required to be taken (including through the Company’s transfer agent) any action inconsistent made with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyFINRA.
Appears in 3 contracts
Sources: Registration Rights Agreement (TRI Pointe Homes, Inc.), Registration Rights Agreement (TRI Pointe Homes, Inc.), Registration Rights Agreement (TRI Pointe Homes, LLC)
Registration Procedures. In the case of each registration, qualification or compliance effected by the Company pursuant to this Section 2, Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. Subject to Section 2.2.3, at its expense Company will:
(a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(i) prepare Prepare and file with the SEC Commission a registration statement with respect to effect such registration securities and thereafter use reasonable best efforts to cause such registration statement to become effective within 90 days of filing, and to remain effective pursuant from such effective date until the earlier to the terms occur 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 (i) one year after the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto)statement, the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) the date on which all Registrable Securities may be sold by non-affiliates of Company pursuant to paragraph (k) of Rule 144 (or any successor provision) promulgated by the Commission under the Securities Act, and (iii) the date as of which all Registrable Securities have been sold pursuant to the registration statement, and prepare and file with the SEC Commission such amendments and supplements to such registration statement and supplements to the prospectus used in connection therewith contained therein as may be necessary to keep such registration statement effective and to comply with for the provisions of period described above, provided that, unless approved by Company in its discretion, no such registration shall constitute a shelf registration under Rule 415 promulgated by the Commission under the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article VAct;
(iiib) furnish to each Selling Shareholder Enter into a written underwriting agreement in customary and each underwriterreasonable form and substance with the managing underwriter or underwriters of the public offering of such securities, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of offering is to be underwritten in whole or in part;
(c) Furnish to the Holders participating in such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the registration statement, preliminary prospectus, final prospectus contained and other documents as the Holders may reasonably request;
(d) Notify the Holders participating in such registration, promptly after it shall receive notice thereof, of the time when such registration statement (including each preliminary has become effective or a supplement to any prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 forming a part of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderregistration statement has been filed;
(ive) use reasonable best efforts to register or qualify Notify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws Holders promptly of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC Commission for the amending or any other Government Entity for amendments or supplements to the supplementing of such registration statement or the prospectus or for additional information;
(Cf) Prepare and file with the issuance by Commission promptly upon the SEC or any other Government Entity request of any stop order suspending the effectiveness of the such Holders any amendments or supplements to such registration statement or prospectus which, in the initiation reasonable opinion of any proceedings by any Person counsel for that purpose; and
(D) such Holders and for Company, is required under the receipt by Securities Act or the Company of any notification rules and regulations thereunder in connection with respect to the suspension distribution 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 by such purposeHolders;
(xg) Prepare and promptly file with the Commission, and promptly notify in writing each Selling Shareholdersuch Holders of, such amendment or supplement to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at any the time when a prospectus relating thereto to such securities is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event has occurred as a the result of which, the which any such prospectus included in such registration statement, or any other prospectus 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not effect would include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in light of the circumstances in which they were made; and
(xih) use reasonable best efforts to preventAdvise such Holders, and promptly after it shall receive notice or obtain knowledge thereof, of the withdrawal of, issuance of any stop order by the Commission suspending the effectiveness of such registration statement;
(xii) otherwise statement or the initiation or threatening of any proceeding for that purpose and promptly use reasonable best efforts to comply with all applicable rules and regulations of prevent the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt issuance of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), stop order or to obtain its withdrawal if such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) day period during which such registration statement must remain effective pursuant to this Agreement shall stop order should be extended by the number of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECissued.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 3 contracts
Sources: Stock Acquisition Agreement (Trycera Financial, Inc.), Stock Acquisition Agreement (Mezzanine Investment Corp), Stock Acquisition Agreement (Trycera Financial, Inc.)
Registration Procedures. (a) If and whenever the Company whenever, LWN is required to use reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall LWN will, as expeditiously as reasonably possible:
(ia) prepare and and, if the registration is pursuant to notice given under Section 5.2(a), in any event within 45 days after the giving of notice pursuant to Section 5.2(a), file with the SEC a registration statement with respect to effect such registration Registrable Securities on any form for which LWN then qualifies or which counsel for LWN shall deem appropriate, and thereafter which form shall be available for the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreementeffective; provided, however, that the Company LWN may discontinue any registration of its securities which are not Registrable Securities is being effected pursuant to Section 5.2 at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of 180 days or such lesser period of time as LWN or any Holder may be required under the Securities Act to deliver a prospectus in connection with any sale of Registrable Securities, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition by the Holder or Holders thereof set forth in such registration statement; provided, that before filing a registration statement or prospectus, or any amendments or supplements thereto, LWN will furnish to the Holders and their counsel copies of all documents proposed to be filed, which documents will be subject to the review of such counsel and will not be filed if such counsel reasonably objects;
(iiic) furnish to each Selling Shareholder and each underwriter, if any, Holder of the securities being sold by such Selling Shareholder 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) prospectus and each free writing prospectus (supplement, 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 Actapplicable), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderHolder;
(ivd) use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder each Holder 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 Shareholder and underwriter Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderHolder, except that the Company LWN 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 where, but for the requirements of this clause (iv) Section 5.3(d), it would not be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction jurisdiction, or (C) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use 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 Shareholder(s) Holder or Holders thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case Holder 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 public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in Section 5.3(b), upon discovery that, or upon the happening of any event as a result of which, LWN'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 Shareholdersuch Holder, promptly prepare and furnish to such seller Holder 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 therein, in the light of the circumstances under which they were made, not misleading;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiig) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve practicable (12) months, but not more than eighteen (18months) 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;
(xiiih) use its reasonable best efforts to assist Selling Shareholders who made a request cause all such Registrable Securities to be listed on any securities exchange on which the Company ▇▇▇▇▇▇ Common Stock is then listed, if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange, and to provide a transfer agent and registrar for a third party “market maker” for such Registrable Securities covered by such registration statement no later than the Class P Shareseffective date of such registration statement;
(xivi) cooperate with the Selling Shareholders enter into such customary agreements (including an underwriting agreement in customary form) and the managing underwriter to facilitate the timely preparation and delivery take such other actions as sellers of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness a majority of shares of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by Registrable Securities or the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, reasonably request in order to furnish expedite or facilitate the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution disposition 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 Securities, including making appropriate members of the foregoing, in the event that the offering senior management of Registrable Securities is to be made by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making LWN available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC for customary participation in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject "road show" presentation to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelypotential investors;
Appears in 3 contracts
Sources: Put/Call Agreement (Loewen Group Inc), Put/Call Agreement (Prime Succession Inc), Put/Call Agreement (Rose Hills Co)
Registration Procedures. All expenses incurred in connection with the registrations under this Section 19 (a) If including all registration, filing, qualification, legal, printing and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities accounting fees, but excluding underwriting commissions and discounts), shall be borne by Parent. In connection with registrations under the Securities Act as provided in Section 5.1Sections 19.1 and 19.2, Section 5.2 and Section 5.3 the Company shall Parent will, as expeditiously as reasonably possiblepracticable:
(i) prepare Prepare and file with the SEC a registration statement with respect to effect such registration Parent Stock and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, however, provided that the Company Parent may discontinue any registration of its securities which are not Registrable Securities that is being effected pursuant to Section 19.1 at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;.
(ii) prepare Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary (x) to keep such registration statement effective for a period as may be requested by the stockholders holding a majority of the Parent Stock covered thereby not exceeding 90 days and (y) to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article V;disposition by the seller or sellers thereof set forth in such registration statement; provided, that before filing a registration statement or prospectus relating to the sale of Parent Stock, or any amendments or supplements thereto, Parent will furnish to counsel of each holder of Parent Stock covered by such registration statement or prospectus, copies of all documents proposed to be filed, which documents will be subject to the review of such counsel, and Parent will give reasonable consideration in good faith to any comments of such counsel.
(iii) furnish Furnish to each Selling Shareholder holder of Parent Stock covered by the registration statement and to each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits)Parent Stock, such number of copies of the prospectus contained in such registration statement (including each a 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, for delivery in conformity with the requirements of the Securities 1933 Act, and such other documents documents, as such Selling Shareholder and underwriter, if any, Person may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;Parent Stock.
(iv) use reasonable Use its best efforts to register or qualify such Registrable Securities the Parent Stock covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities Parent Stock owned by such Selling Shareholderseller in such jurisdictions, except that the Company Parent shall not for any such purpose be required (x) to (A) 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) be obligated to be Section 19.3(iv), it is not then so qualified, (By) to subject itself to taxation in any such jurisdiction jurisdiction, or (Cz) file a to take any action which would subject it to general consent to or unlimited service of process in any such jurisdiction;jurisdiction where it is not then so subject.
(v) use reasonable Use 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 Parent Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;Parent Stock.
(viivi) in connection with an Underwritten Offering, obtain for Immediately notify each Selling Shareholder and underwriter:
(A) an opinion seller of counsel for the Company, covering the matters customarily Parent Stock covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act1933 Act within the appropriate period mentioned in Section 19.3(ii), upon discovery that, or upon the happening of any event as a result of which, if Parent becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, at the request of any Selling Shareholdersuch seller, promptly prepare and furnish to such seller deliver 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 Parents of such Registrable SecuritiesParent Stock, such each 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.
(xivii) Otherwise use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to Selling Shareholdersits security holders, in each case as soon as reasonably practicable, but not later than 45 calendar days after the close of the period covered thereby (90 calendar days in case the period covered corresponds to a fiscal year of the Parent), an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, Parent which earnings statement shall will satisfy the provisions of Section 11(a11 (a) of the Securities Act and Rule 158 thereunder;1933 Act.
(xiiiviii) Use its best efforts in cooperation with the underwriters to list such Parent Stock on each securities exchange as they may reasonably designate.
(ix) In the event the offering is an underwritten offering, use its reasonable best efforts to assist Selling Shareholders who made obtain a request to "cold comfort" letter from the Company to provide independent public accountants for a third party “market maker” for Parent in customary form and covering such matters of the Class P Shares;type customarily covered by such letters.
(xivx) cooperate with Execute and deliver all instruments and documents (including in an underwritten offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Selling Shareholders and stockholders holding a majority of the managing underwriter shares of Parent Stock covered by the Registration Statement may reasonably request in order to facilitate effect an underwritten public offering of such Parent Stock.
(xi) Make available for inspection by the timely preparation and delivery seller of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any such Parent Stock covered by such registration statement, and enable such securities by any underwriter participating in any disposition to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available effected pursuant to the Company’s transfer agent prior to the effectiveness of such registration statement a supply 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 such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations atParent, and otherwise participating in any “road shows” (domestic cause all of Parent's officers, directors and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other employees to supply all information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offeringany such seller, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if anyattorney, to furnish the Company accountant or agent in writing such information regarding each Selling 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 connection with such registration statement.
(bxii) Without limiting any of Obtain for delivery to the foregoing, in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters agent an opinion or opinions from counsel for Parent in connection with such offering containing representations, warranties, indemnities customary form and agreements customarily included (but not inconsistent with the covenants in form and agreements of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’s possession of the prospectus current at the time of receipt of such notice relating scope reasonably satisfactory to such Registrable Securities. In the event the Company shall give such notice, any applicable one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented underwriter or amended prospectus agent and such prospectus shall have been filed with the SECits counsel.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 3 contracts
Sources: Asset Purchase Agreement (Alliance Group Inc), Asset Purchase Agreement (Alliance Group Inc), Asset Purchase Agreement (Alliance Group Inc)
Registration Procedures. (a) If and whenever Whenever any Registrable Securities are to be registered pursuant to Section 2, the Company is required to will use reasonable best efforts diligence to effect the registration of any such Registrable Securities under in accordance with the intended method of disposition thereof as quickly as practicable and in accordance with the provisions of Section 2. In connection with any offering of Registrable Securities Act as provided in Section 5.1pursuant to the Agreement, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC Commission a registration statement that includes the Registrable Securities requested to effect such registration be included therein in accordance with Section 2 and thereafter use reasonable best efforts diligence 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 are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time least five Business Days before filing such a registration statement or prospectus or any amendments thereto (amendment or supplement thereto, including prospectuses or supplements thereto)documents incorporated by reference therein, the Company will furnish to the counsel selected by Holder, and the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) underwriters, if any, draft copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, the Holder and such review and comment to be conducted with reasonable promptness underwriters, and the Company shall will not file any registration statement or prospectus or amendment or supplement thereto (including such documents incorporated by reference) to which the Selling Shareholders (representing Holder or the underwriters with respect to such Registrable Securities, if any, shall reasonably object within five days of receipt of any of such documents; and provided further, however, that if the Company, in the case of a majority Piggyback Registration, despite the reasonable objection of the Holder, desires to proceed with the registration of its shares, the Holder may withdraw the Registrable Securities from being included in such registration) objectoffering, using its good-faith efforts to minimize delay caused by such withdrawal, and the Company may then, notwithstanding anything to the contrary in writingthe immediately preceding proviso, on a timely basis, based on any disclosure included therein proceed with such offering; the Company and the Holder acknowledge that relates such withdrawal by the Holder will delay such offering for as much time as is necessary to amend such Selling Shareholdersregistration statement or prospectus to reflect the withdrawal of such Registrable Securities from such offering;
(iib) prepare and file with the SEC Commission such amendments and supplements post- effective amendments to such the registration statement and the prospectus used in connection therewith as may be necessary to keep the registration statement effective for a period of six months (or such shorter period which will terminate when all Registrable Securities covered by such registration statement effective have been sold or withdrawn, but not prior to the expiration of the 90-day 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 covered by such registration statement, in each case statement during the applicable period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such registration statement or supplement to the prospectus; the Company shall not be deemed to have complied with its obligations hereunder to keep a registration statement effective during the applicable period if it voluntarily takes any action that would result in the prevention of the Holder from selling such Registrable Securities during that period unless such action is required under applicable law;
(iiic) furnish to each Selling Shareholder the Holder and each underwriterthe underwriter or underwriters, if any, of the securities being sold by without charge, such Selling Shareholder such reasonable number of conformed copies of such the registration statement and of each any post-effective amendment thereto and supplement thereto (in each case including all exhibits), such reasonable 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 any amendments or supplements thereto, and any other prospectus filed under Rule 424 under documents incorporated by reference therein, as the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned being sold by such Selling Shareholder;
the Holder (iv) it being understood that the Company consents to the use reasonable best efforts to register of the prospectus and any amendment or qualify such supplement thereto by the Holder and the underwriter or underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the prospectus or any amendment or supplement thereto);
(d) notify the Holder at any time when a prospectus relating thereto is required to be delivered under the 1933 Act, when the Company becomes aware of the happening of any event as a result of which the prospectus included in such registration statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) use reasonable diligence to cause all Registrable Securities included in such registration statement to be listed, by the date of the first sale of Registrable Securities pursuant to such registration statement, on each securities exchange on which the Common Stock of the Company is then listed or proposed to be listed, if any;
(f) make generally available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the 1933 Act no later than 90 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 the registration statement, which earnings statement shall cover said 12-month period, which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on such forms and reports as the Company may be required to file under the Exchange Act and otherwise complies with Rule 158 under the 1933 Act as soon as feasible;
(g) notify the 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, and make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment;
(h) if requested by the managing underwriter or underwriters, 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, the purchase price being paid therefor by such underwriter or underwriters and any other terms of the underwritten offering of such Registrable Securities (excluding, however, information with respect to the number of Registrable Securities being sold to such underwriter or underwriters by the Holder), and promptly make all required filings of such prospectus supplement or post-effective amendment;
(i) as promptly as practicable after filing with the Commission of any document which is incorporated by reference into a registration statement, deliver to the Holder as many copies of that document as may be reasonably requested by the Holder;
(j) on or prior to the date on which the registration statement is declared effective, use reasonable diligence to register or qualify, and cooperate with the Holder the underwriter or underwriters, if any, and their counsel, in connection with the registration or qualification of the Registrable Securities covered by the registration statement for offer and sale under the securities laws or blue sky laws of such jurisdictions as any Selling Shareholder each state and any underwriter other jurisdiction of the securities being sold by United States as the Holder or underwriter reasonably requests in writing, to use reasonable diligence to keep each such Selling Shareholder shall reasonably requestregistration or qualification effective, including through new filings, or amendments or renewals, during the period such registration statement is required to be kept effective and take to do any and all other action which may be reasonably acts or things necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in all such jurisdictions of the Registrable Securities owned covered by such Selling Shareholder, except the applicable registration statement; 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 is not then so qualified or to take any action which would not but for the requirements of this clause (iv) be obligated subject it to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject; and provided, further, however, that while it is the present intention of the Holder to cooperate with the Company to keep the costs of compliance with state blue sky laws to a minimum, the Holder shall have the right to require compliance by the Company with the blue sky laws of as many states as the managing underwriter deems reasonably necessary in its good faith judgment to realize the maximum possible value for the Registrable Securities included in such registration statement;
(vk) cooperate with the Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, may request, subject to the underwriters' obligation to return any certificates representing securities not sold;
(l) use reasonable best efforts diligence 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 reasonable best efforts to cause such Registrable Securities covered by such the registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the Selling Shareholder(s) seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such securities;
(m) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other reasonable actions as the Holder or the underwriters retained by the Holder participating in an underwritten public offering, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(viin) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholderthe Holder, 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 Selling Shareholder 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 's officers, directors and employees to (x) supply make available for inspection and/or copying all information Records reasonably requested by any such Inspector in connection with such registration statement statement; and
(o) list such securities on or with a national securities exchange (which term shall include the NASDAQ National Market System) and (y) be reasonably available for due diligence discussions comply with all applicable exchange listing requirements and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Companyrules and regulations thereof;
(ixp) promptly notify use reasonable diligence to obtain a "cold comfort" letter from the Company's independent public accountants in writing each Selling Shareholder customary form and the underwriters, if any, covering such matters of the following events:
(A) the filing of the type customarily covered by cold comfort letters covering registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment statements similar to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names issue as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as Holder reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companyrequests. The Company may require each Selling Shareholder and each underwriterHolder, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening occurrence of any event of the kind described in subsection (d) of this Section 5.6(a)(x)3.1, such Selling Shareholder shall will forthwith discontinue such Selling Shareholder’s disposition of the Registrable Securities pursuant to until the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s Holder's receipt of the copies of the supplemented or amended prospectus contemplated by subsection (d) of this Section 5.6(a)(x3.1 and copies of any additional or supplemental filings which are incorporated by reference in the prospectus, or until Holder is advised in writing (the "Advice") and, if by the Company that the use of the prospectus may be resumed. If so directed by the Company, the Holder shall deliver to the Company, Company (at the Company’s 's expense, ) all copiescopies in Holder's possession or control, other than permanent file copies, copies then in such Selling Shareholder’s possession the Holder's possession, of the prospectus current at the time of receipt of such notice relating to covering such Registrable Securities. In the event the Company shall give any such notice, any applicable one hundred twenty the time periods mentioned in subsection (120b) day period during which such registration statement must remain effective pursuant to of this Agreement Section 3.1 shall be extended by the number of days during the period from and including the date of the giving of a written such notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all each seller of Registrable Securities covered by such Selling Shareholders 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 SEC.
contemplated by subsection (d) With a view to making available of this Section 3.1 hereof or the Advice. If such registration statement refers to the holders Holder by name or otherwise as the holder of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company then the Holder shall have the right to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
require (i) make the insertion therein of language, in form and keep public information available, substance satisfactory to the Holder to the effect that the holding by such Holder of such securities is not to be construed as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required recommendation of such Holder of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and investment quality of the Exchange Act, a copy of Company's securities covered thereby and that such holding does not imply that the most recent annual or quarterly report Holder will assist in meeting any future financial requirements of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(eii) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders such reference to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could Holder by name or otherwise then be Transferred if they were already outstanding), as contemplated is not required by the Charter; provided, that Securities Act or any similar federal statute then in such eventforce, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, deletion of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyreference to such Holder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Us Legal Support Inc), Registration Rights Agreement (Us Legal Support Inc), Registration Rights Agreement (Us Legal Support Inc)
Registration Procedures. In the case of each registration effected by the Company pursuant to this Agreement, the Company shall keep each Participating Holder advised in writing as to the initiation of each registration and as to the completion thereof. In connection with any such registration (in each case, to the extent applicable):
(a) If The Company shall provide the Participating Holders and whenever their counsel with a reasonable opportunity to review, and comment on, the Company is required Registration Statement with respect to use reasonable best efforts to effect the registration of any Registrable Securities under prior to the Securities Act as provided in Section 5.1filing thereof with the Commission, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(i) consider and respond to all such comments in good faith. The Company shall prepare and file with the SEC Commission a registration statement Registration Statement with respect to effect such registration Registrable Securities and thereafter use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective, or prepare and remain effective file with the Commission a prospectus or a prospectus supplement, as applicable, with respect to such Registrable Securities pursuant to an effective Registration Statement and, upon 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 request of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies holders of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in registered thereunder, keep such registrationRegistration Statement effective or such prospectus or prospectus supplement current, until the earlier of (i) object, in writing, the date on a timely basis, based on any disclosure included therein that relates which all Registrable Securities covered thereby have been sold pursuant to such Selling Shareholders;
registration and (ii) the expiration of ninety (90) days after the later of (A) such registration statement becomes effective or (B) in the case of a registration pursuant to a registration statement dated prior to the Request Notice, the provision of a final preliminary prospectus or final preliminary prospectus supplement to the Underwriters for distribution to potential investors. The Participating Holders may request, and subject to the Company’s approval, which shall not be unreasonably withheld or delayed, the Company will include, a plan of distribution section in such registration statement, prospectus or prospectus supplement provided by the Participating Holders and the Underwriters of such offering.
(b) The Company will prepare and file with the SEC Commission such amendments and supplements to such registration statement and the Registration Statement, prospectus, prospectus supplement or any issuer free writing prospectus used in connection therewith with such Registration Statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities Registrable Securities covered thereby for the period set forth in Section 2.06(a).
(c) Prior to filing a Registration Statement, a prospectus or any issuer free writing prospectus or any amendment or supplement to such Registration Statement, prospectus or issuer free writing prospectus, the Company will make available to (i) each Participating Holder, (ii) Holders’ Counsel and (iii) each Underwriter of the Registrable Securities covered by such registration statementRegistration Statement, in copies of such Registration Statement, prospectus or issuer free writing prospectus and each case in accordance amendment or supplement as proposed to be filed, together with the terms of this Article V;
(iii) any exhibits thereto, and thereafter, furnish to each Selling Shareholder such Participating Holders, Holders’ Counsel and each underwriterUnderwriters, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of such Registration Statement, prospectus or issuer free writing prospectus and each amendment and supplement thereto, the prospectus contained included in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents or information as such Selling Shareholder and underwriterParticipating Holder, if any, Holders’ Counsel or Underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;in accordance with the plan of distribution set forth in the prospectus included in the Registration Statement.
(ivd) The Company will promptly notify each Participating Holder of any stop order issued or threatened by the Commission and use commercially reasonable best efforts, at the Participating Holders’ expense, to prevent the issuance of such stop order or, if issued, to remove it as soon as reasonably possible.
(e) On or prior to the date on which the Registration Statement is declared effective, the Company shall 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 Shareholder Participating Holder reasonably requests and do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action lawful acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Participating Holders to consummate the disposition in such jurisdictions of such Registrable Securities, and use commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective while the Registrable Securities owned by such Selling ShareholderRegistration Statement is effective; provided, except that the Company shall will not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualifiede), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) file a general consent to general service of process in any such jurisdiction;.
(vf) use reasonable best efforts to cause such Registrable Securities to be listed on The Company will notify each securities exchange on which similar securities issued by the Company are then listed andParticipating Holder, 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 reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder Holders’ Counsel and the underwritersUnderwriter promptly and confirm such notice in writing, if any(i) when any prospectus, of the following events:
(A) the filing of the registration statementprospectus supplement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, issuer free writing prospectus 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;
, (Bii) of any request by the SEC Commission or any other Government Entity federal or state governmental authority for amendments or supplements to the registration statement or the a Registration Statement, prospectus or issuer free writing prospectus for additional information;
information to be included in any Registration Statement, prospectus or issuer free writing prospectus, (Ciii) of the issuance by the SEC any state securities commission or any other Government Entity regulatory authority of any stop order suspending the effectiveness qualification or exemption from qualification of any of the registration statement Registrable Securities under state securities or blue sky laws or the initiation of any proceedings by any Person for that purpose; and
, and (Div) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 that makes any statement made in a result Registration Statement or any related prospectus or issuer free writing prospectus or any document incorporated or deemed to be incorporated by reference therein untrue or that requires the making of which, the prospectus included any changes in such registration statementRegistration Statement, as then in effectprospectus, includes an issuer free writing 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 in the Registration Statement, prospectus or issuer free writing prospectus not misleading, misleading in light of the circumstances in which they were made; and, at the request of any Selling Shareholderas promptly as practicable thereafter, promptly prepare and furnish file with the Commission a supplement or amendment to such seller a reasonable number of copies of a supplement to Registration Statement, prospectus or an amendment of issuer free writing prospectus so that such Registration Statement, prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such or issuer free writing prospectus shall will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;. Each Participating Holder hereby agrees to keep any disclosures under subsection (iv) above confidential until such time as a supplement or amendment is filed or the Company has otherwise publicly disclosed such information. Subject to Section 2.06, the Company hereby agrees to promptly file such supplement or amendment or otherwise publicly disclose such information upon written request of any Participating Holder.
(xig) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the The Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the have appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing (i) prepare and offering materials, preparing, making make presentations at, and otherwise participating in at any “road shows” (domestic and foreign) and before analysts and rating agencies calls and meetingsagencies, as the case may be, not to exceed five (5) Business Days in duration (to be scheduled in a collaborative manner so as not to unreasonably interfere with the conduct of the business of the Company), (ii) take other actions to obtain ratings for any Registrable Securities and other information meetings and customary marketing activities organized by the underwriters, and (iii) otherwise using use their commercially 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million .
(as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant h) The Company will furnish customary closing certificates and other deliverables to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer Underwriter(s) and the President of Participating Holders and enter into customary agreements satisfactory to the Company. The Company may require each Selling Shareholder and each underwriter(including, if anyapplicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to furnish expedite or facilitate the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution disposition of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statementSecurities.
(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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) The Company will make available for inspection by any Underwriter participating in any disposition pursuant to such Registration Statement, and keep public information availableany attorney, as those terms are understood accountant or other agent retained by any such Participating Holder or Underwriter (in each case after reasonable prior notice and defined in Rule 144 under at reasonable times during normal business hours and without unnecessary interruption of the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner Company’s business or operations), all reports financial and other records, pertinent corporate documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such other reports and documents so filed Participating Holder, Underwriter, attorney, accountant or furnished agent in connection with such Registration Statement.
(j) The Company shall use commercially reasonable efforts to cause, at the Participating Holders’ expense, all such Registrable Securities registered pursuant hereunder to be listed on each national securities exchange on which similar securities of the same class issued by the Company as such holder may request are then listed.
(k) The Company shall use commercially reasonable efforts to ensure the obtaining of all necessary approvals from FINRA.
(l) The Company shall furnish to each Participating Holder a copy of all documents filed with and all material correspondence from or to the Commission in connection with the sale any such offering of Registrable Securities without registrationSecurities.
(em) The Company shall use its commercially reasonable best efforts to take all action necessary or appropriate upon furnish to the request lead Underwriter, addressed to the Underwriters, (1) an opinion of counsel for the Company (which may be the Company’s General Counsel), dated the effective date of the Registration Statement and the closing of the sale of any Investor Shareholder securities thereunder, as well as a consent to ensure that Class A Shareholders arebe named in the Registration Statement or any prospectus thereto, from and after (2) comfort letters as well as an audit opinion and consent to be named in the Registration Statement or any prospectus relating thereto signed by the Company’s independent public accountants who have examined and reported on the Company’s financial statements included in the Registration Statement covering substantially the same matters with respect to the Registration Statement (and the prospectus or any issuer free writing prospectus included therein) and (in the case of the accountants’ comfort letters) with respect to events subsequent to the date hereofof the financial statements, able as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to convert their Class A Shares into Class P Shares the underwriters in a timely manner in order to permit the timely Transfer underwritten public offerings of such Class P Shares (securities, to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by that the Charter, and shall not take Company is required to deliver or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer delivery of such Class P Shares (opinion or comfort letters to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that underwriters in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, an underwritten public offering of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelysecurities.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (J C Penney Co Inc), Registration Rights Agreement (Pershing Square Capital Management, L.P.)
Registration Procedures. (a) If and whenever the Company is required to use reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall will, as expeditiously as reasonably 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 pursuant to Section 2 or 3, file with the SEC a registration statement with respect to effect such registration Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; effective, provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities is being effected pursuant to Section 2 at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period not in excess of 270 days and to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC thereunder with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition 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 furnish to counsel selected pursuant to Section 7 hereof by the Holders of the Registrable Securities covered by such registration statement to represent such Holders, copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iii) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(iv) use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderSeller, 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 where, but for the requirements of this clause (iv) ), it would not be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use 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 Shareholder(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 Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case 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 public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 4, 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 Shareholdersuch 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;
(xivii) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve practicable (12) months, but not more than eighteen (18months) 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;
(viii) (A) use its best efforts to list such Registrable Securities on any securities exchange on which the Common Stock is then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange; and (B) 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;
(ix) 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 5 hereof, and take such other actions as sellers of a majority of shares of such Registrable Securities or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(x) 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;
(xi) 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;
(xii) notify counsel (selected pursuant to Section 7 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 (A) 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 prospectus shall have been filed, (B) of the receipt of any comments from the SEC, (C) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information, and (D) 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;
(xiii) 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 its reasonable best efforts of any preliminary prospectus and, if any such order is issued, to assist Selling Shareholders who made a request to obtain the Company to provide for a third party “market maker” for withdrawal of any such order at the Class P Sharesearliest possible moment;
(xiv) 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, without limitation, 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;
(xv) cooperate with the Selling Shareholders 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 lawlegends) 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 Selling Shareholders Holders may request and keep available and make available request;
(xvi) obtain for delivery to the Company’s transfer agent prior Holders of Registrable Securities being registered and to the effectiveness of underwriter or agent an opinion or opinions from counsel for the Company in customary form and in form, substance and scope reasonably satisfactory to such registration statement a supply of such certificatesHolders, underwriters or agents and their counsel; and
(xvxvii) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the case disposition of an Underwritten Offering, cause such Registrable Securities and their respective counsel in connection with any filings required to be made with the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the CompanyNASD. The Company may require each Selling Shareholder 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 Shareholder 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in clause (vi) of this Section 5.6(a)(x)4, such Selling Shareholder shall Holder will forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling ShareholderHolder’s receipt of the copies of the supplemented or amended prospectus contemplated by clause (vi) of this Section 5.6(a)(x) 4, and, if so directed by the Company, such Holder will deliver to the Company, Company (at the Company’s expense, ) all copies, other than permanent file copies, copies then in such Selling ShareholderHolder’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 any such notice, any applicable one hundred twenty the period mentioned in clause (120ii) day period during which such registration statement must remain effective pursuant to of this Agreement Section 4 shall be extended by the number of days during the period from and including the date of the giving of a written such notice regarding the happening pursuant to clause (vi) of an event of the kind described in this Section 5.6(a)(x) to 4 and including the date when all each seller of Registrable Securities covered by such Selling Shareholders 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 SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken clause (including through the Company’s transfer agentvi) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately4.
Appears in 3 contracts
Sources: Registration Rights Agreement (Sealy Texas Holdings LLC), Registration Rights Agreement (Brimfield Precision LLC), Registration Rights Agreement (ITC Holdings Corp.)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the In connection with any registration of any Registrable Securities under the Securities Act as provided in Section 5.1contemplated hereunder, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) Use its reasonable best efforts to prepare and file with the SEC a registration statement to effect such registration Registration Statement on the appropriate form and thereafter use its reasonable best efforts to cause such the registration statement to become effective as soon as reasonably practicable after its filing and remain effective in any event no later than the Effectiveness Deadline. At least five (5) Business Days before filing a Registration Statement 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto)Section 1 hereof, the Company will furnish to each Investor, if requested, a copy of a draft of the counsel selected Selling Shareholder and Plan of Distribution sections (with respect to the Plan of Distribution section, only to the extent there have been any material changes to the form thereof attached hereto as Exhibit A) for review and approval, in each case which approval shall not be unreasonably withheld or delayed, and any objections to such draft Registration Statement must be lodged within two (2) Business Days of such Investor’s receipt thereof. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached hereto as Exhibit C (a “Selling Shareholder Questionnaire”) on a date that is not less than two (2) Business Days prior to the Filing Date or by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority end of the Registrable Securities included fourth (4th) Business Day following the date on which such Holder receives draft materials in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersaccordance with this Section 2(a);
(iib) Notify immediately each Holder of any stop order threatened or issued by the SEC and take all actions reasonably required to prevent the entry of a stop order or if entered to have it rescinded or otherwise removed;
(c) Use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be Registration Statement necessary to keep such registration statement the Registration Statement effective under the Securities Act for 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, in the Registration Statement during each case period in accordance with the terms Holders’ intended methods of this Article Vdisposition as set forth in the Registration Statement;
(iiid) furnish Furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such Holder a sufficient 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, Registration Statement and such other documents as such Selling Shareholder and underwriter, if any, Holder may reasonably request in order to facilitate the public sale or other disposition of its Registrable Securities; provided, that the Registrable Securities owned by such Selling ShareholderCompany shall have no obligation to provide any document pursuant to this clause that is available on the ▇▇▇▇▇ system;
(ive) use Use its reasonable best efforts to register or qualify such the Registrable Securities covered by such subject to registration statement under such other securities laws or blue sky laws of such jurisdictions in the United States of America as any Selling Shareholder Holder requests and will do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action which acts and things that may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter Holder to consummate the disposition in such jurisdictions of the its Registrable Securities owned by such Selling Shareholder, except Securities; provided 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 or to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionjurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(vf) use Use 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 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 reasonable best efforts to cause such Registrable Securities covered by such registration statement the Registration Statement to be registered with or approved by such other those governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof each Holder to consummate the disposition of such its Registrable Securities;
(viig) in connection with an Underwritten Offering, obtain for Notify each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling ShareholderHolder, 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 the prospectus included in such registration statement, as then in effect, includes or any document incorporated therein by reference 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 Shareholder, promptly and will 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 prospectus or any such Registrable Securities, such document incorporated therein by reference so that thereafter the 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;
(xih) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use Use its reasonable best efforts to assist Selling Shareholders who made a request cause all Registrable Securities to be listed on the same securities exchange, with the same CUSIP, and with the same transfer agent, as similar securities issued by the Company to provide for a third party “market maker” for the Class P Sharesare then listed;
(xivi) cooperate with Promptly make available for inspection by the Selling Shareholders selling Holders and any attorney or accountant or other agent retained by the managing underwriter to facilitate the timely preparation selling Holders, all financial and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statementother records, pertinent corporate documents, and enable such securities to be in such denominations properties of the Company, and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to cause the Company’s transfer agent officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith. Notwithstanding the foregoing, the Company shall not disclose material nonpublic information to the Holders, or to advisors to or representatives of the Holders, unless prior to disclosure of such information the effectiveness Company identifies such information as being material nonpublic information and provides the Holders, such advisors and representatives with the opportunity to accept or refuse to accept such material nonpublic information for review and any Holder wishing to obtain such information enters into an appropriate confidentiality agreement with the Company with respect thereto; and
(j) Notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement a supply of such certificates; andhas been filed.
(xvk) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate If (i) a Registration Statement covering all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable SecuritiesSecurities required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the Filing Deadline (a “Filing Failure”) or (B) not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”); provided, that in or (ii) on any day after the case Effective Date sales of an Underwritten Offering involving anticipated gross proceeds all of at least $500 million the Registrable Securities required to be included on such Registration Statement cannot be made (other than (x) during a Suspension Period (as determined defined in good faith by Section 3(a)) or (y) if the Requesting Shareholders (or Registration Statement is on Form F-1, for a period of 15 days following the Demand Shareholders who have elected date on which the Company files a post-effective amendment to effect an Underwritten Offering incorporate the Company’s Annual Report on Form 20-F) pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement or failure to register a sufficient number of Common Shares) (a “Maintenance Failure”) then, in satisfaction of the Shelf Registration Statement)damages to any Holder by reason of any such delay in or reduction of its ability to sell the underlying Common Shares (which remedy shall not be exclusive of any other remedies available to any Holder at law or in equity), the reference Company shall pay to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’s possession of the prospectus current at the time of receipt of such notice Holder relating to such Registration Statement an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) of the aggregate Purchase Price (as such term is defined in the Securities Purchase Agreement) of such Holder’s Registrable SecuritiesSecurities included in such Registration Statement on each of the following dates: (i) the day of a Filing Failure and on every thirtieth day (pro rated for shorter periods) thereafter until the earlier of (x) the date on which such Filing Failure is cured and (y) the date on which the Registrable Securities cease to be Registrable Securities under this Agreement; (ii) the day of an Effectiveness Failure and on every thirtieth day (pro rated for shorter periods) thereafter until the earlier of (x) the date on which such Effectiveness Failure is cured and (y) the date on which the Registrable Securities cease to be Registrable Securities under this Agreement; and (iii) the initial day of a Maintenance Failure and on every thirtieth day (pro rated for shorter periods) thereafter until the earlier of (x) the date on which such Maintenance Failure is cured and (y) the date on which the Registrable Securities cease to be Registrable Securities under this Agreement. The payments to which a Holder shall be entitled pursuant to this Section 2(k) are referred to herein as “Registration Delay Payments.” Registration Delay Payments shall be paid on the earlier of (I) the last day of the calendar month during which such Registration Delay Payments are incurred and (II) the fifth Business Day after the event or failure giving rise to the Registration Delay Payments is cured. In the event the Company fails to make Registration Delay Payments in a timely manner, such Registration Delay Payments shall give bear interest at the rate of one percent (1.0%) (or such noticelesser maximum amount that is permitted to be paid by applicable law) of such unpaid Registration Delay Payment per month (pro rated for shorter periods) until such amounts, any applicable one hundred twenty plus all interest thereon, are paid in full. Notwithstanding anything to the contrary herein or in the Securities Purchase Agreement, in no event shall the aggregate amount of Registration Delay Payments exceed, in the aggregate, eight percent (1208.0%) day period during which such registration statement must remain effective pursuant to this Agreement of the aggregate Purchase Price. The Effectiveness Deadline for a Registration Statement shall be extended by the number of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented without default or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time Registration Delay Payments hereunder in the event that any applicable law adversely affects the ability Company’s failure to obtain the effectiveness of Class A Shareholders to convert Class A Shares into Class P Shares in the Registration Statement on a timely manner in order basis results from the failure of a Holder to permit timely provide the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated Company with information requested by the Charter; provided, that Company and necessary to complete the Registration Statement in such event, accordance with the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, requirements of the Investor Shareholders, Securities Act (in which case the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyEffectiveness Deadline would be extended with respect to Registrable Securities held by such Holder).
Appears in 3 contracts
Sources: Securities Purchase Agreement, Registration Rights Agreement (ObsEva SA), Securities Purchase Agreement (ObsEva SA)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 2.1 and 2.2 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective pursuant effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall as promptly as practicable furnish such documents to the terms Purchasers and each underwriter, if any, participating in the offering of this Agreementthe Registrable Securities and their respective counsel, which documents will be subject to the review and comments of the Purchasers, each underwriter and their respective counsel; and provided, further, 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) notify the Purchasers of the Commission's requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the terms intended method of this Article Vdistribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 365 days;
(iiic) furnish furnish, without charge, to each Selling Shareholder the Purchasers and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as the Purchasers and such Selling Shareholder and underwriter, if any, underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use its reasonable best efforts (i) 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 Shareholder and any underwriter States of the securities being sold by such Selling Shareholder United States of America where an exemption is not available and as the Purchasers or any managing underwriter shall reasonably request, (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 may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Purchasers to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling Shareholderthe Purchasers, 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 subsection (ivd) be obligated to be so qualified, (B) subject itself qualified or to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(ve) use 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 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 reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to enable the Selling Shareholder(s) thereof Company and counsel to the Purchasers to consummate the disposition of such Registrable Securities;
(viif) furnish to the Purchasers and each underwriter, if any, participating in connection with an Underwritten Offeringthe offering of the securities covered by such registration statement, obtain for each Selling Shareholder and underwriter:
a signed counterpart of (Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(Bii) a “"comfort” " letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s 's or any other entity's financial statements included or incorporated by reference 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' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated);
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixg) promptly notify in writing the Purchasers and each Selling Shareholder and the underwritersmanaging underwriter, if any, participating in the offering of the following events:
securities covered by such registration statement (Ai) the filing of the when such registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the such registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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 any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, andin the light of the circumstances under which they were made, and in the case of this clause (v), at the request of any Selling Shareholder, the Purchasers promptly prepare and furnish to such seller the Purchasers and each managing underwriter, if any, participating in the offering of the Registrable Securities, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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; and (vi) at any time when the representations and warranties of the Company contemplated by Section 2.4(a) or (b) hereof cease to be true and correct;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiih) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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 promulgated thereunder, and promptly furnish to the Purchasers a copy of any amendment or supplement to such registration statement or prospectus;
(xiiii) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration;
(i) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of cause all Registrable Securities covered by such registration statement a supply to be listed on the NASDAQ "national market system" or the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such certificates; and
Registrable Securities is then permitted under the rules of such exchange, or (xvii) in the case of an Underwritten Offeringif no similar securities are then so listed, cause the appropriate officers of the Company to use its reasonable best efforts to facilitate (x) cause all offeringssuch Registrable Securities to be listed on a national securities exchange or (y) failing that, including secure designation of all such Registrable Securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or (z) failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to preparing marketing and offering materialssuch shares with the National Association of Securities Dealers, preparing, making presentations at, and otherwise participating in any “road shows” Inc.;
(domestic and foreignk) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts deliver promptly to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant counsel to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder Purchasers and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to such registration statement;
(l) use its reasonable 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, no later than the effective date of the registration statement; and
(n) make available its senior executive officers and chairman and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company's business) in their marketing of Registrable Securities. The Company may require the Purchasers to furnish the Company in writing such information regarding each Selling Shareholder or underwriter the Purchasers and the distribution of such the 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees writing. The Purchasers agree that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(xparagraph (g)(iii), such Selling Shareholder shall forthwith (iv) or (v) of this Section 2.3, the Purchasers will, to the extent appropriate, discontinue such Selling Shareholder’s their disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until to such Selling Shareholder’s Registrable Securities until, in the case of paragraph (g)(v) of this Section 2.3, their receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (g)(v) of this Section 5.6(a)(x) 2.3 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 Shareholder’s possession its possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice relating notice. If the disposition by the Purchasers of their securities is discontinued pursuant to such Registrable Securities. In the event foregoing sentence, the Company shall give such notice, any applicable one hundred twenty (120) day extend the period during which such of effectiveness of the registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all such Selling Shareholders the Purchasers shall receive such a have received copies of the supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
contemplated by paragraph (dg)(v) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirementsthis Section 2.3; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action so extend such period, the Purchasers' request pursuant to this Section 5.6(e) that would result in the failure following which such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, registration statement was filed shall not be counted for purposes of the Investor Shareholders, requests for registration to which the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyPurchasers are entitled pursuant to Section 2.1 hereof.
Appears in 3 contracts
Sources: Registration Rights Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp), Registration Rights Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp), Registration Rights Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp)
Registration Procedures. (a) If and whenever Whenever the Company is required to effect a registration hereunder (or, as applicable, requested to assist in connection with a sale under a shelf registration statement), the Company shall use its reasonable best efforts to effect the registration and sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided promptly as practicable, and, in Section 5.1connection with any such request, Section 5.2 and Section 5.3 the as applicable:
(a) The Company shall as expeditiously as reasonably possible:
(i) practicable prepare and file with the SEC a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use its reasonable best efforts to (i) cause such filed registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, 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 within a reasonable time before filing and (ii) promptly update such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein so that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, anduntil all of the Registrable Securities included in such registration statement shall have actually been sold thereunder; provided that, at the request of any Selling ShareholderHolder, promptly prepare and the intended method of distribution relating to the sale of the Registrable Securities to be registered thereunder shall provide for individual Holders to be named as selling stockholders under such registration statement.
(b) Prior to filing a registration statement or prospectus or any amendment or supplement thereto, the Company shall, if requested, furnish to each Holder and each underwriter, if any, of the Registrable Securities covered by such seller a reasonable registration statement copies of such registration statement as proposed to be filed, and thereafter the Company shall furnish to each Holder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as a Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder. The Holders shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to the Holders, and the Company shall use its reasonable best efforts to comply with such request, provided, however, that the Company shall not have any obligation so to modify any information if the Company reasonably expects that so doing would cause the prospectus to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) After the filing of the registration statement, the Company shall (i) cause the related prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in such registration statement or supplement to such prospectus and (iii) promptly notify the Holders of any stop order issued or an amendment threatened by the SEC or any state securities commission and take all reasonable best efforts to prevent the entry of such prospectus stop order or to remove it if entered.
(d) The Company shall use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions in the United States as the Holders reasonably (in light of the Holders’ intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable a Holder to consummate the disposition of the Registrable Securities owned by such Holder, provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.9(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(e) The Company shall immediately notify the Holders, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, misleading and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available promptly prepare and make available to the Company’s transfer agent prior to Holders and file with the effectiveness of SEC any such registration statement a supply of such certificates; andsupplement or amendment.
(xvf) The Company shall select an underwriter or underwriters in connection with any Underwritten Offering; provided that, in the case event of an Underwritten Offeringa Demand Registration requested by the ▇▇▇▇▇▇ Holders or the Vestar Holders, cause such underwriter or underwriters shall be selected by the appropriate officers of ▇▇▇▇▇▇ Holders or the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingsVestar Holders, as the case may be, with the consent of the Company (which consent shall not be unreasonably withheld). In connection with any Underwritten Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take all such other information meetings actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Underwritten Offering, including, to the extent necessary, the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with the FINRA.
(g) Subject to the execution of confidentiality agreements satisfactory in form and substance to the Company in the exercise of its good faith judgment, the Company will give to the Holders, their counsel and accountants (i) reasonable and customary marketing activities organized by access to its books and records, that, in the underwritersopinion of the Board are pertinent corporate documents, and otherwise using their (ii) such opportunities to discuss the business of the Company with its directors, officers, employees, counsel and the independent public accountants who have certified its financial statements, as shall be appropriate, in the reasonable judgment of counsel, to the Holders, to enable them to exercise its due diligence responsibility.
(h) The Company shall use its 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant furnish to the Shelf Registration Statement)), the reference Holders and to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each such underwriter, if any, a signed counterpart, addressed to furnish the Holders or such underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the kind customarily covered by opinions or comfort letters, as the case may be, as the Holder and the underwriters reasonably request.
(i) Each Holder shall promptly furnish in writing to the Company such information regarding each Selling Shareholder or underwriter and such Holder that is reasonably necessary for the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete and such other information regarding such Holder as may be legally required 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters advisable in connection with such offering 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 such underwriting agreementsregistration.
(cj) Each Selling Shareholder 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 5.6(a)(x2.9(e), such Selling Shareholder Holder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Holder’s Registrable Securities until such Selling ShareholderHolder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 2.9(e), and, if so directed by the Company, deliver to the Company, at the Company’s expense, such Holders shall destroy all copies, other than any permanent file copies, copies then in such Selling ShareholderHolder’s possession possession, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 2.9(a)) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x2.9(e) to the date when all such Selling Shareholders the Company shall receive such make available to the Holders a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 2.9(e).
(dk) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the The Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) shall use its reasonable best efforts to file with list all Registrable Securities covered by such registration statement on any securities exchange or quotation system on which any of the SEC in a timely manner all reports and other documents required Registrable Securities are then listed or traded.
(l) The Company shall have appropriate officers of the Company under the Exchange Act, (i) prepare and make presentations at any time after “road shows” and before analysts and rating agencies, as the Company has become subject case may be, (ii) take other actions to such reporting requirements; and
obtain ratings for any Registrable Securities and (iii) furnish otherwise use their reasonable best efforts to any holder so long cooperate as reasonably requested by the holder owns underwriters in the offering, marketing or selling of the Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(em) The Company shall use its reasonable best efforts to take all action other steps necessary or appropriate upon to effect the request registration of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as Registrable Securities contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyhereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Duff & Phelps Corp), Registration Rights Agreement (Duff & Phelps Corp)
Registration Procedures. (a) If and whenever Whenever the Company is required by the provisions of this Agreement to use commercially reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall Company, as expeditiously as reasonably possible:
(ia) shall prepare and file with the SEC a the requisite registration statement statement, which shall comply as to effect such registration form in all material respects with the requirements of the applicable form and thereafter shall include all financial statements required by the SEC to be filed therewith, and 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 within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), or comparable statements under securities or blue sky laws of any jurisdiction, or any Issuer Free Writing Prospectus related thereto, the Company will furnish to one counsel for the counsel Holders participating in the planned offering (selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”Majority Participating Holders) and the lead managing underwriter, 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 such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents registration statement or amendment thereto, any prospectus or supplement thereto or any Issuer Free Writing Prospectus related thereto to which the Selling Shareholders (representing a majority of Majority Participating Holders or the Registrable Securities included in such registration) underwriters, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders);
(iib) shall 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 for such period as any Participating Holder 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition by the Participating Holder(s) thereof set forth in such registration statement;
(iiic) furnish shall furnish, without charge, to each Selling Shareholder Participating Holder and each underwriter, if any, of the securities being sold covered by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of such registration statement, each amendment thereto, the prospectus contained included in such registration statement (including statement, each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Issuer Free Writing Prospectus”) Prospectus utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Acttherewith, all in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder Participating Holder and underwriter, if any, underwriter reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderParticipating Holder, and shall consent to the use in accordance with all applicable law of each such registration statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer 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;
(ivd) shall use commercially reasonable 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 Shareholder and Participating Holder or any underwriter of the securities being sold by such Selling Shareholder managing underwriter, if any, reasonably shall reasonably request, and take do any and all other action which acts and things that may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter Participating Holder or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions, except that in no event shall 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 where, but for the requirements of this clause (iv) Section 2.4(d), it would not be obligated required to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on shall 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriterany:
(Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or thereto, any post-effective amendment to the registration statement or any Issuer Free Writing Prospectus utilized in connection therewith, has been filed and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
(Bii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
(Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and;
(Div) 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;
(xv) notify in writing each Selling Shareholder, 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, the prospectus included in related thereto, any document incorporated therein by reference, any Issuer 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 notification relates to an event described in clause (v), the Company, subject to the provisions of any Selling ShareholderSection 2.1(c), promptly shall prepare and file with the SEC, and furnish to such each seller and each underwriter, if any, a reasonable number of copies of 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;
(xif) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to shall comply with all applicable rules and regulations of the SEC, and make generally available to Selling Shareholdersits security holders, as soon as reasonably practicablepracticable after the effective date of the registration statement (and in any event within 90 days after the end of such 12 month period described hereafter), an earnings statement of the Company statement, which need not be audited, covering the period of at least twelve (12) months, but not more than eighteen (18) months, 12 consecutive 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;
(xiiig) shall use its commercially reasonable best efforts to assist Selling Shareholders who made cause all Registrable Securities covered by such registration statement to be authorized to be listed on a request to national securities exchange if shares of the Company to provide for a third party “market maker” for particular class of Registrable Securities are at that time, or will be immediately following the Class P Sharesoffering, listed on such exchange;
(xivh) shall 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) shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders 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 that 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);
(j) shall use commercially reasonable efforts to obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any;
(k) shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement;
(l) shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(m) shall make reasonably available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters, taking into account the needs of the Company’s businesses and the requirements of the marketing process, in the marketing of Registrable Securities in any underwritten offering;
(n) shall promptly prior to the filing of any document that is to be incorporated by reference into the registration statement or the prospectus, and prior to the filing of any Issuer Free Writing Prospectus, provide copies of such document to counsel for the Participating Holders 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 such Participating Holders or underwriters may reasonably request;
(o) shall cooperate with the Selling Shareholders Participating Holders 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) 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 in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(p) shall take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the managing underwriter disposition of such Registrable Securities;
(q) shall not take any direct or such Selling Shareholders may request and keep available and make available indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to the Company’s transfer , the Company will take such action as is necessary to make any such prohibition inapplicable;
(r) shall cooperate with each Participating Holder and each underwriter or agent prior to participating in the effectiveness disposition of such registration statement a supply of such certificatesRegistrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(xvs) shall take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material respects with the case Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of an Underwritten Offeringa material fact or omit to state a material fact necessary to make the statements therein, cause the appropriate officers in light of the Company to use reasonable best efforts to facilitate all offeringscircumstances under which they were made, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companynot misleading. The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each Selling Shareholder and each underwriter, if any, Participating Holder as to which any registration is being effected furnish the Company such information in writing regarding such information regarding each Selling Shareholder or underwriter Participating Holder and the distribution of such its Registrable Securities as the Company may from time to time reasonably request may request; provided, that such information is necessary for the Company to complete or amend the information required by consummate such registration statement.
(b) Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to and shall be made by or through an underwriter, the Company, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters used only in connection with such offering 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 such underwriting agreements.
(c) registration. Each Selling Shareholder Participating Holder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in under Section 5.6(a)(x2.4(e)(v), such Selling Shareholder shall forthwith Participating Holder will discontinue such Selling Shareholder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling ShareholderParticipating Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securitiesprospectus. In the event the Company shall give any such notice, any the applicable one hundred twenty (120period set forth in Section 2.4(b) day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the such period from and including the date of the giving of a written such notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all such Selling Shareholders each Participating Holder shall receive such a have received the copies of the supplemented or amended prospectus and prospectus. If any such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 registration statement or comparable statement under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish “blue sky” laws refers to any holder so long Holder by name or otherwise as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements Holder of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report any securities of the Company, such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such other reports Holder and documents so filed or furnished the Company, to the effect that the holding by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer Holder of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall securities is not take or cause to be taken (including through construed as a recommendation by such Holder of the investment quality of the Company’s transfer agent) securities covered thereby and that such holding does not imply that such Holder will assist in meeting any action inconsistent with the foregoing. Without limiting the generality future financial requirements of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time (ii) in the event that any applicable law adversely affects such reference to such Holder by name or otherwise is not in the ability judgment of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding)Company, as contemplated advised by counsel, required by the Charter; provided, that Securities Act or any similar federal statute or any state “blue sky” or securities law then in such eventforce, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, deletion of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyreference to such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Continental Building Products, Inc.), Registration Rights Agreement (Southeastern Grocers, LLC)
Registration Procedures. (a) If and whenever the Company Fortress is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 Sections 4.1 and Section 5.3 the Company 4.2 Fortress shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that the Company Fortress 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company Fortress will furnish to the counsel selected by the Shareholders Investors which are including Registrable Securities in such registration (“Selling ShareholdersInvestors”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholderspromptness;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement until the earlier of such time as all of such securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 90 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 90 days after such registration statement becomes effective;
(iii) furnish to each Selling Shareholder Investor and each underwriter, if any, of the securities being sold by such Selling Shareholder Investor such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder Investor and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderInvestor;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder Investor and any underwriter of the securities being sold by such Selling Shareholder Investor shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder Investor and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderInvestor, except that the Company Fortress shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation limited liability company in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company Fortress 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 reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(sInvestor(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder Investor and underwriter:
(A) an opinion of counsel for the CompanyFortress, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder Investor and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the CompanyFortress’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling ShareholderInvestor, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder Investor or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company Fortress (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the CompanyFortress’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, that, unless the disclosure of such Records may 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, Fortress shall not be subject required to provide any information under this subparagraph (viii) if (i) Fortress believes, after consultation with counsel for Fortress, that to do so would cause Fortress to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) Fortress has requested and been granted from the execution SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) Fortress reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Selling Investor requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to Fortress; and provided, further, that each Selling Investor agrees that it will, upon learning that disclosure of such Records by such Selling Shareholder or other Inspector of a customary confidentiality agreement Investor is sought in a form which is reasonably satisfactory court of competent jurisdiction, give notice to Fortress and allow Fortress, at its expense, to undertake appropriate action and to prevent disclosure of the CompanyRecords deemed confidential;
(ix) promptly notify in writing each Selling Shareholder Investor and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government 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; and
(D) the receipt by the Company Fortress of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling ShareholderInvestor, 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 ShareholderInvestor, 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling ShareholdersInvestors, as soon as reasonably practicable, an earnings statement of the Company Fortress covering the period of at least twelve (12) 12 months, but not more than eighteen (18) 18 months, beginning with the first day of the CompanyFortress’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders Investors who made a request to the Company Fortress to provide for a third party “market maker” for the Class P A Shares; provided, however, that Fortress shall not be required to serve as such “market maker”;
(xiv) cooperate with the Selling Shareholders Investors and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders Investor may request and keep available and make available to the CompanyFortress’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the have appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing Fortress prepare and offering materials, preparing, making make presentations at, and otherwise participating in at any “road shows” (domestic and foreign) and before analysts and rating agencies calls and meetingsagencies, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise using their use its reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders Investors and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company Fortress may require each Selling Shareholder Investor and each underwriter, if any, to furnish the Company Fortress in writing such information regarding each Selling Shareholder Investor or underwriter and the distribution of such Registrable Securities as the Company Fortress 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Shareholder Agreement (Fortress Investment Group Holdings LLC), Shareholder Agreement (Fortress Investment Group Holdings LLC)
Registration Procedures. In order to participate in a registration by selling Total Registrable Securities in the related offering pursuant to Section 9 or Section 10, a holder of Total Registrable Securities shall be required to enter into, and sell its Total Registrable Securities only pursuant to, the underwriting agreement reasonably acceptable to such holder (a) If which may include, for avoidance of doubt, provisions for indemnification as set forth in Section 14B), and whenever shall take such other actions as may be reasonably necessary to effect such holder’s participation in the offering and to provide any assurances reasonably requested by the Company is required and the managing underwriter(s) in that regard. Whenever the holders of Total Registrable Securities have requested that any Total Registrable Securities be registered pursuant to Section 9, the Company will use reasonable its best efforts to effect the registration and the sale of any such Total Registrable Securities under in accordance with the Securities Act as provided in Section 5.1intended method of disposition thereof, Section 5.2 and Section 5.3 pursuant thereto the Company shall will as expeditiously as reasonably possible:
(i) prepare and file with the SEC a registration statement with respect to effect such registration Total Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, (provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including holders of a majority of the Total Registrable Securities included in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will filed three (3) Business Days shall be subject to the review and comment of deemed sufficient time for such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersreview);
(ii) notify each holder of Total Registrable Securities participating in such offering of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective (a) with respect to a Long-Form Registration, until the earlier to occur of sixty (60) days after the initial effectiveness of the registration statement or the completion of the distribution (including any over-allotment option) of the Total Registrable Securities registered under such registration statement 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 the sale of such Total Registrable Securities by an underwriter or dealer or such shorter period as will terminate when all of the Total Registrable Securities covered by such registration statement have been disposed of in accordance with the intended methods of disposition (but in any event not before the expiration of any longer period required under the Securities Act) or (b) with respect to a Short Form Registration, a period of not more than one hundred eighty (180) days after the initial effectiveness of the registration statement or the completion of the distribution (including any over-allotment option) of the Total Registrable Securities registered under such registration statement 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 the sale of Total Registrable Securities by an underwriter or dealer or such shorter period as will terminate when all of the Total Registrable Securities covered by such registration statement have been disposed of in accordance with the intended methods of disposition (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, in each case statement until such time as all of such Total Registrable Securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement;
(iii) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), Total 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Total Registrable Securities owned by such Selling Shareholderseller;
(iv) use reasonable its best efforts to register or qualify such Total Registrable Securities covered by such registration statement under such other securities laws or blue sky laws Laws of such jurisdictions as any Selling Shareholder seller reasonably requests and do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action reasonable acts and things which may be reasonably are necessary or reasonably advisable to enable such Selling Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Total Registrable Securities owned by such Selling Shareholderseller (provided, except however, that the Company shall will not for any such purpose be required to (Aa) 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 (iv) be obligated to be so qualifiedSection 12(iv), (Bb) subject itself to taxation in any such jurisdiction or (Ciii) file a general consent to general service of process in any such jurisdiction);
(v) use reasonable best 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition seller of such Total Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholdersuch seller, promptly the Company will, as soon as reasonably practicable, 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 Total 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;
(xivi) use reasonable its best efforts to prevent, cause all such Total Registrable Securities to be listed on a national securities exchange or market;
(vii) provide a transfer agent and obtain registrar for all such Total Registrable Securities not later than the withdrawal of, any order suspending the effectiveness effective date of such registration statement;
(xiiviii) with respect to an underwritten offering, enter into such customary agreements (including underwriting agreements and including, for the avoidance of doubt, provisions for indemnification by the Company as may be requested by the underwriters and take all such other actions as the managing underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Total Registrable Securities (including effecting a stock split or a combination of shares);
(ix) make available with reasonable advance notice during normal business hours for inspection by any seller of Total 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;
(x) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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(a9(a) of the Securities Act and Rule 158 thereunder;
(xi) permit any holder of such Total Registrable Securities, which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel is required to be included;
(xii) 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 such Total Registrable 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;
(xiii) with respect to underwritten offerings, use its reasonable best efforts to assist Selling Shareholders who made a request to obtain comfort letters, dated the effective date of such registration statement (and the date of the closing), signed by the Company’s independent certified public accountants (and, if necessary, any other certified public accountants of any business acquired by the Company for which financial statements and financial data are required to provide for a third party “market maker” for be included in the Class P Shares;registration statement), in customary form and covering such matters of the type customarily covered by comfort letters as the managing underwriter(s) in such public offering reasonably request; and
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materialsunderwritten offerings, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in managing underwriter(s) of the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President provide a legal opinion of the Company’s outside counsel, dated the date of the closing, with respect to the effective registration statement and the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature. Notwithstanding the foregoing, the Company’s obligations pursuant to this Section 12 shall not include publicly disclosing or making publicly available the Station Financials. The Company may require each Selling Shareholder and each underwriter, if any, seller of Total Registrable Securities as to which any registration is being effected to furnish the Company in writing with such information regarding each Selling Shareholder 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Investor Rights Agreement (Lbi Media Inc), Investor Rights Agreement (Lbi Media Inc)
Registration Procedures. (a) If and whenever the Company is required by the provisions of Article 2 to include Registrable Securities in a Registration Statement under the Securities Act, the Company will use reasonable its best efforts to effect the registration and sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 5.1intended methods of disposition specified by the holders participating therein. Without limiting the foregoing, Section 5.2 and Section 5.3 the Company shall in each such case will, as expeditiously as reasonably possible:
(i) prepare and file with the SEC a registration statement to effect such registration and thereafter 3.1 use reasonable its 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 are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time as far in advance as practical before filing such registration statement or any amendments thereto (including prospectuses or supplements amendment thereto), the Company will furnish to counsel for the counsel selected by the Shareholders which are including requesting holders of Registrable Securities in such registration (“Selling Shareholders”) with copies of reasonably complete drafts of all such documents proposed to be filed, which documents will be subject to the review and comment of such counselfiled (including exhibits), and any such review and comment holder shall have the opportunity to be conducted with reasonable promptness object to any information pertaining solely to such holder that is contained therein and the Company shall not file any will make the corrections reasonably requested by such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates holder with respect to such Selling Shareholders;information prior to filing such registration statement or amendment.
(ii) prepare 3.2 Prepare and file with the SEC Commission such amendments and supplements to such registration statement and the any prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities included in such registration statement, in each case accordance with the intended methods of disposition thereof, until the earlier of (a) such time as all of the Registrable Securities included in such registration statement have been disposed of in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained holder or holders thereof as set forth in such registration statement or (including each preliminary prospectus and any summary prospectusb) and each free writing prospectus one hundred eighty (as defined in Rule 405 of the Securities Act180) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by days after such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;becomes effective.
(v) use reasonable best efforts to cause such Registrable Securities to be listed on 3.3 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder requesting holder and the underwriter or underwriters, if any, of the following eventsof:
(Aa) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the when such registration statement or any Free Writing Prospectus utilized prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to the such registration statement or any post-effective amendment thereto, when the same has become effective;
(Bb) any written request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus or for additional informationprospectus;
(Cc) any notification received by the Company from the Commission regarding the Commission's initiation of any proceeding with respect to, or of the issuance by the SEC or any other Government Entity of Commission of, any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purposestatement; and
(Dd) 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.
3.4 Furnish to each holder of Registrable Securities included in such registration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto, and such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such seller's Registrable Securities, and such other documents, as such holder may reasonably request to facilitate the disposition of its Registrable Securities.
3.5 Use its best efforts to register or qualify all Registrable Securities included in such registration statement under the securities or "blue sky" laws of such states as each holder of Registrable Securities shall reasonably request within twenty (20) days following the original filing of such registration statement and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such holder to consummate the disposition in such states of the Registrable Securities owned by such holder, except that the Company shall not for any such purpose be required (a) to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this Section 5.5 be obligated to be so qualified, (b) to consent to general service of process in any such jurisdiction or (c) to subject itself to taxation in any such jurisdiction by reason of such registration or qualification.
3.6 Use its best efforts to cause all Registrable Securities included in such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable each holder thereof to consummate the initiation or threat disposition of any proceeding for such purpose;Registrable Securities.
(x) notify 3.7 Notify each holder whose Registrable Securities are included in writing each Selling Shareholdersuch registration 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, the which any prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, and at the request of any Selling Shareholder, 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 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 the light of the circumstances under which they were made, not misleading;.
(xi) 3.8 Otherwise use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Commission.
(xiii) use 3.9 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be cause all Registrable Securities included in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply to be listed, upon official notice of such certificates; and
(xv) in the case of an Underwritten Offeringissuance, cause the appropriate officers on any securities exchange or quotation system on which any of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, securities of the same class as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. Securities are then listed.
3.10 The Company may require each Selling Shareholder holder whose Registrable Securities are being registered to, and each underwritersuch holder, if anyas a condition to including Registrable Securities in such registration statement, to shall, furnish the Company in writing and the underwriters with such information and affidavits regarding each Selling Shareholder or underwriter such holder and the distribution of such Registrable Securities as the Company and the underwriters 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters writing in connection with such offering containing representationsregistration statement. At any time during the effectiveness of any registration statement covering Registrable Securities offered by a holder, warranties, indemnities and agreements customarily included (but not inconsistent with if such holder becomes aware of any change materially affecting the covenants and agreements accuracy of the Company information contained herein) by an issuer of common stock in such underwriting agreementsregistration statement or the prospectus (as then amended or supplemented) relating to such holder, it will immediately notify the Company of such change.
(c) Each Selling Shareholder agrees that upon 3.11 Upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x)3.7, such Selling Shareholder shall each holder will forthwith discontinue such Selling Shareholder’s holder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto to such Registrable Securities until such Selling Shareholder’s receipt of holder receives the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 3.7 and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, Company all copies, other than permanent file copies, then in such Selling Shareholder’s 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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement 3.12 If requested by the Company as to or its compliance with the reporting requirements of Rule 144 under the Securities Act and underwriters, none of the Exchange Act, holders will sell their Registrable Securities for a copy specified period (not to exceed one hundred and eighty (180) days) following the effective date of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with a Registration Statement relating to the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dme Interactive Holdings Inc), Registration Rights Agreement (Dme Interactive Holdings Inc)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possiblepossible (but, in any event, within 60 days after a Demand Registration Request in the case of Section 2.4(a) below), in connection with the Registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(ia) prepare and file 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 thereafter include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur (i) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (ii) a period of 90 days in the case of an underwritten offering effected pursuant to a registration statement other than a shelf registration statement and a period of three years in the 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 within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses 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 Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”Majority Participating Holders) and to one counsel for the Manager, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents will be subject to the 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 and comment to be conducted with reasonable promptness and the Company shall not file any such documents registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Selling Shareholders (representing a majority of Majority Participating Holders or the Registrable Securities included in such registration) underwriters, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders);
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition 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 covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(iiic) furnish in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering;
(d) furnish, without charge, to each Selling Shareholder Participating Holder and each underwriter, if any, of the securities being sold covered by such Selling Shareholder 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 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 ActAct and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder 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 Selling Shareholderseller (the Company 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) 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 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 Shareholder and sellers of Registrable Securities or any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions (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 (A) 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, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixf) promptly notify in writing each Selling Shareholder Participating Holder and the underwriterseach managing underwriter, if any, of the following events:
: (Ai) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or thereto, any post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, 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;
; (Bii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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;
; (xv) notify in writing each Selling Shareholder, 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 Shareholdernotification 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;
(xig) use reasonable best efforts comply (and continue to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiicomply) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECSEC (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 Shareholdersits security holders, as soon as reasonably practicablepracticable 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 of the Company (which need not be audited) covering the period of at least twelve (12) months, but not more than eighteen (18) months, 12 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;
(xiiih) 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 Class P Shares;
(xivi) cooperate with the 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 lawA) representing securities sold under any registration statement, and enable cause all such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of Registrable Securities covered by such registration statement a supply of such certificates; and
(xv) in to be listed on the case of an Underwritten Offering, cause the appropriate officers of principal securities exchange on which similar securities issued by the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” are then listed (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)if any), if the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution listing of such Registrable Securities as is then permitted under the Company may from time rules of such exchange, or (B) if no similar securities are then so listed, to time reasonably request to complete or amend the information required by cause all 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, if requested by the underwriter, shall enter into an underwriting agreement with listed on 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) national securities exchange 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, take all actions that may be required by the Company shall comply with all applicable securities or other laws in connection with as the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request issuer of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner Registrable Securities in order to permit facilitate the timely Transfer 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) 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 Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyregistration statement;
Appears in 2 contracts
Sources: Reorganization Agreement (Goosehead Insurance, Inc.), Reorganization Agreement (Goosehead Insurance, Inc.)
Registration Procedures. (a) If In connection with the Registered Exchange Offer (if required to be made pursuant to Section 3(a) hereof):
(i) As a condition to its participation in the Registered Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall be required to furnish, upon the request of the Company, within 15 Business Days thereafter, such information regarding such Holder and whenever such Holder's intentions in connection with the Series F Preferred Stock or Class F Subordinated Debentures, as applicable, to be received in the Registered Exchange Offer as the Company is may from time to time reasonably request in writing. Each such Holder shall be required to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
(ii) As a condition to its participation in the Registered Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall be required to furnish, upon the request of the Company, prior to the Consummation thereof a written representation to the Company that it is not engaged in, and does not intend to engage in, a distribution of the Series F Preferred Stock or Class F Subordinated Debentures, as applicable, to be received in the Registered Exchange Offer and that it is acquiring the Series F Preferred Stock or Class F Subordinated Debentures, as applicable, in its ordinary course of business and shall otherwise cooperate in the Company's preparations for the Registered Exchange Offer. Each Holder shall acknowledge that any such Holder using the Registered Exchange Offer to participate in a distribution of the securities to be acquired in the Registered Exchange Offer (x) could not rely on the position of the Commission enunciated in Exxon Capital Holdings Corporation (available April 13, 1989) or similar no-action letters, (y) must comply with registration and prospectus delivery requirements of the Act in connection with a secondary resale transaction and (z) that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 of Regulation S-K.
(iii) If the Registered Exchange Offer relates to the Subordinated Debentures, the Company shall cause the Subordinated Debenture Indenture to be qualified under the TIA not later than the effective date of the first Registration Statement relating to the Registered Exchange Offer; and, in connection therewith, will cooperate with the Subordinated Debenture Trustee and the holders of the Class E Subordinated Debentures to effect such changes to the Subordinated Debenture Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the TIA; and will execute, and use its reasonable best efforts to cause such Subordinated Debenture Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner.
(b) In connection with the Shelf Registration Statement, the Company will use its reasonable best efforts to effect such registration, to permit the registration sale of any Registrable the Transfer Restricted Securities under being sold in accordance with the Securities Act as provided in Section 5.1intended method or methods of distribution thereof and, Section 5.2 and Section 5.3 pursuant thereto, the Company shall will as expeditiously as reasonably possible:
(i) prepare and file with the SEC Commission, as soon as practicable, a Registration Statement relating to the registration statement on any appropriate form under the Act, cooperate and assist in any filings required to effect such registration be made with the NASD and thereafter use its reasonable best efforts to cause such registration statement Shelf Registration Statement to become effective and remain effective pursuant approved by such governmental agencies or authorities as may be necessary to enable the terms selling Holders to consummate the disposition of this Agreementsuch Transfer Restricted Securities; provided, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement a Shelf Registration Statement or any Prospectus, or any amendments thereto (including prospectuses or supplements thereto), including documents incorporated by reference after the initial filing of the Shelf Registration Statement, the Company will furnish to the counsel selected by Holders and the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) underwriter(s), if any, copies of all such documents proposed to be filed, which documents will be subject filed prior to the review filing thereof and comment shall make the Company's representative available for discussion of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;documents.
(ii) prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement effective for the applicable period set forth in Section 3 hereof, or such registration statement effective shorter period which will terminate when all Transfer Restricted Securities covered by such Shelf Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case Shelf Registration Statement during the applicable period in accordance with the terms intended method or methods of this Article V;distribution by the sellers thereof set forth in such Shelf Registration Statement or supplement to the Prospectus.
(iii) furnish if requested by the Holders of Transfer Restricted Securities being sold in an Underwritten Offering conducted pursuant to each Selling Shareholder an Underwriting Agreement referred to in Section 6(b)(xii) or the Underwriter(s) thereof, promptly incorporate in a Prospectus supplement or post-effective amendment such information as such Underwriter(s) and each underwriterthe Holders of Transfer Restricted Securities being sold agree should be included therein relating to the plan of distribution of the Transfer Restricted Securities, including, without limitation, information with respect to the number of shares of Preferred Stock and principal amount of Subordinated Debentures being sold to such Underwriter(s), the purchase price being paid therefor and with respect to any other terms of the offering of the Transfer Restricted 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 the Company is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment.
(iv) advise the Underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to confirm such advice in writing, (A) when the Shelf Registration Statement or any post-effective amendment thereto, has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) if at any time the representations and warranties of the Company contemplated by paragraph (xii)(A) below cease to be true and correct, (D) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading and (E) of the receipt by the Company of any stop order from the Commission suspending the effectiveness of the Registration Statement, and any order issued by any state securities being sold commission or other regulatory authority suspending the qualification or exemption from qualification of such Transfer Restricted Securities under state securities or Blue Sky laws. If at any time the Company shall receive any such stop order suspending the effectiveness of the Registration Statement, or any such order from a state securities commission or other regulatory authority, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(v) promptly prior to the filing of any document that is to be incorporated by such Selling Shareholder such number reference into the Shelf Registration Statement or the Prospectus (after initial filing of conformed the Shelf Registration Statement), provide copies of such registration statement document to the selling Holders and to the managing Underwriter(s), if any, and make the Company's representative(s) available for discussion of such document.
(vi) furnish to each selling Holder and each of the Underwriter(s), if any, without charge, at least one signed copy of the Registration Statement, as first filed with the Commission, and of each amendment and supplement thereto (in each case thereto, including all exhibitsdocuments incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference).
(vii) deliver to each selling Holder and each of the Underwriter(s), 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 each free writing prospectus (any amendment or supplement thereto as defined in Rule 405 such Persons may reasonably request; the Company consents to the use of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith Prospectus and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements amendment or supplement thereto by each of the Securities Act, selling Holders and such other documents as such Selling Shareholder and underwritereach of the Underwriter(s), if any, may reasonably request in order to facilitate connection with the public offering and the sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Transfer Restricted Securities covered by such the Prospectus or any amendment or supplement thereto.
(viii) prior to any public offering of Transfer Restricted Securities, cooperate with the selling Holders, the Underwriter(s), if any, and their respective counsel in connection with the registration statement and qualification of the Transfer Restricted Securities under such other the securities laws or blue sky Blue Sky laws of such jurisdictions as the selling Holders or Underwriter(s) may request and do any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action which may be reasonably acts or things necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Transfer Restricted Securities owned covered by such Selling Shareholderthe Shelf Registration Statement; provided, except however, that the Company shall not for any such purpose be required to (A) register or qualify generally to do business as a foreign corporation in where it is not then so qualified or to take any jurisdiction wherein action that would subject it would not but for to the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in suits or to taxation, other than as to matters and transactions relating to the Shelf Registration Statement, in any jurisdiction where it is not now so subject.
(ix) cooperate with the selling Holders and the Underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such jurisdictionTransfer Restricted Securities to be in such denominations and registered in such names as the Holders or the Underwriter(s), if any, may request at least two Business Days prior to any sale of Transfer Restricted Securities made by such Underwriter(s);
(vx) use reasonable best efforts if any fact or event contemplated by Section 6(b)(iv)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to cause the 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 of Transfer Restricted Securities, the Prospectus, as amended or supplemented, 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; provided, however, that the Company shall not be required to comply with this Section 6(b)(x) if, and only for so long as: (i) the Company shall be engaged in a transaction; (ii) (A) such Registrable Securities transaction is required to be listed on each securities exchange on which similar securities issued disclosed in the Registration Statement, the related Prospectus, or any amendment or supplement thereto, or the failure by the Company are to disclose such transaction in the Registration Statement or related Prospectus, or any amendment or supplement thereto, as then listed andamended or supplemented, if no such securities are so listed, use commercially reasonable efforts to would cause such Registrable Securities Registration Statement, Prospectus or amendment or supplement thereto, to be listed contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in the light of the circumstances under which they were made; (B) information regarding the existence of such transaction has not then been publicly disclosed by or on behalf of the Company; and (C) the Company determines, in its reasonable judgment, that disclosure of such transaction would have a material adverse effect (1) on the New York Stock Exchangebusiness, condition (financial or other), results of operations or properties of the American Stock Company and its subsidiaries, taken as a whole, or (2) on the consummation of such transaction and (iii) the Company notifies the Holders promptly after making the determination set forth in clause (ii).
(xi) provide a CUSIP number for all Transfer Restricted Securities not later than the effective date of Exchange Offer Registration Statement or the NASDAQ Stock MarketShelf Registration Statement;
(vixii) use reasonable best efforts enter into such customary agreements (including an underwriting agreement in form reasonably satisfactory to cause such Registrable Securities covered by such registration statement to be registered with or approved by the Company) and take all such other governmental agencies or authorities actions in connection therewith as may be necessary requested by the Holders of a majority of the outstanding shares (or principal amount, as the case may be) of the Transfer Restricted Securities or the managing Underwriter(s) in order to enable the Selling Shareholder(s) thereof to consummate expedite or facilitate the disposition of such Registrable Securities;
(vii) the Transfer Restricted Securities pursuant to the Shelf Registration and, in connection with an Underwritten Offeringany such underwriting agreement entered into by the Company, obtain for each Selling Shareholder and underwriter:
(A) an opinion make such representations and warranties to the Holders and the Underwriter(s), in form, substance and scope as are customarily made by issuers to Underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Placement Agreement; (B) obtain opinions of counsel for to the CompanyCompany and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Underwriter(s) and the Holders of the Transfer Restricted Securities being sold) addressed to each selling Holder and the Underwriter(s) covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder Holders and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)Underwriters; provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) obtain "cold comfort" letters and updates thereof from the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect Company's independent certified public accountants addressed to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare Underwriters 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request obtain such "cold comfort" letters addressed to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery Holders of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statementTransfer Restricted Securities, and enable such securities letters to be in such denominations customary form and registered covering matters of the type customarily covered in such names as the managing underwriter "cold comfort" letters by Underwriters in connection with primary underwritten offerings; (D) set forth in full or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) incorporate by reference in the case underwriting agreement the indemnification provisions and procedures of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including Section 8 hereof with respect to preparing marketing all parties to be indemnified pursuant to said Section; and offering materials, preparing, making presentations at, (E) deliver such documents and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, certificates as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as be reasonably requested by the Selling Shareholders Holders of the Transfer Restricted Securities being sold or the underwriter(s) of such Underwritten Offering to evidence compliance with clause (A) above and the underwriters with any customary conditions contained in the offeringunderwriting agreement or other agreement entered into by the Company pursuant to this clause (xii). The above shall be done at each closing under such underwriting or similar agreement, marketing as and to the extent required thereunder. Notwithstanding the foregoing, in no event shall any Holder be entitled to participate in an Underwritten Registration unless Holders of Preferred Stock the aggregate liquidation preference of which equals or selling exceeds $25 million (or, if the Preferred Stock has been exchanged for Subordinated Debentures, the principal amount of which equals or exceeds $25 million) shall first notify the Company of their intent to retain an Underwriter for such purpose pursuant to Section 11 hereof.
(xiii) make available at reasonable times for inspection by the Holders of the Registrable Transfer Restricted Securities; provided, that any Underwriter participating in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the such Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer Statement and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder any attorney 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 accountant retained 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyselling
Appears in 2 contracts
Sources: Registration Rights Agreement (Primedia Inc), Registration Rights Agreement (K Iii Communications Corp)
Registration Procedures. (a) If and whenever the Company is required by the provisions of Article 2 or Article 3 to effect a registration of Registrable Securities under the Securities Act, the Company will use reasonable its best efforts to effect the registration and sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 5.1intended methods of disposition specified by the holders participating therein. Without limiting the foregoing, Section 5.2 and Section 5.3 the Company shall in each such case will, as expeditiously as reasonably possible:
(i) 4.1 In the case of a demand registration pursuant to Section 2.1, prepare and file with the SEC a Commission the requisite registration statement to effect such registration (including such audited financial statements as may be required by the Securities Act or the rules and thereafter regulations thereunder) and use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreementeffective; providedPROVIDED, 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 within a reasonable time as far in advance as practical before filing such registration statement or any amendments thereto (including prospectuses or supplements amendment thereto), the Company will furnish to counsel for the counsel selected by the Shareholders which are including requesting holders of Registrable Securities in such registration (“Selling Shareholders”) with copies of reasonably complete drafts of all such documents proposed to be filed, which documents will be subject to the review and comment of such counselfiled (including exhibits), and any such review and comment holder shall have the opportunity to be conducted with reasonable promptness object to any information pertaining solely to such holder that is contained therein and the Company shall not file any will make the corrections reasonably requested by such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates holder with respect to such Selling Shareholders;information prior to filing such registration statement or amendment.
(ii) prepare 4.2 Prepare and file with the SEC Commission such amendments and supplements to such registration statement and the any prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities included in such registration statement, in each case accordance with the intended methods of disposition thereof, until the earlier of (a) such time as all of the Registrable Securities included in such registration statement have been disposed of in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained holder or holders thereof as set forth in such registration statement or (including each preliminary prospectus and any summary prospectusb) and each free writing prospectus 180 days (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriteror, if anythe filing was on a Form S-3 registration statement, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv365 days) use reasonable best efforts to register or qualify such Registrable Securities covered by after such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably requestbecomes effective; provided, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (orthat, in the case event the holder of any Registrable Securities is required to discontinue such Person which does not satisfy the conditions for receipt holder's disposition of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition Registrable Securities pursuant to any registration statementSection 4.11 hereof, and any attorneysuch 180-days (or 365 days, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as if applicable) shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any extended for such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject additional period as is equal to the execution by period during which such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory holders was required to the Company;discontinue such disposition.
(ix) promptly 4.3 Promptly notify in writing each Selling Shareholder requesting holder and the underwriter or underwriters, if any, of the following eventsof:
(Aa) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the when such registration statement or any Free Writing Prospectus utilized prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to the such registration statement or any post-effective amendment thereto, when the same has become effective;
(Bb) any written request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus or for additional informationprospectus;
(Cc) any notification received by the Company from the Commission regarding the Commission's initiation of any proceeding with respect to, or of the issuance by the SEC or any other Government Entity of Commission of, any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purposestatement; and
(Dd) 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.
4.4 Furnish to each holder of Registrable Securities included in such registration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto, and such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such seller's Registrable Securities, and such other documents, as such holder may reasonably request to facilitate the disposition of its Registrable Securities.
4.5 Use its best efforts to register or qualify all Registrable Securities included in such registration statement under the securities or "blue sky" laws of such states as each holder of Registrable Securities shall reasonably request within twenty (20) days following the original filing of such registration statement and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such holder to consummate the disposition in such states of the Registrable Securities owned by such holder, except that the Company shall not for any such purpose be required (a) to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this Section 4.5 be obligated to be so qualified, (b) to consent to general service of process in any such jurisdiction or (c) to subject itself to taxation in any such jurisdiction by reason of such registration or qualification.
4.6 Use its best efforts to cause all Registrable Securities included in such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable each holder thereof to consummate the initiation or threat disposition of any proceeding for such purpose;Registrable Securities.
(x) notify 4.7 Notify each holder whose Registrable Securities are included in writing each Selling Shareholdersuch registration 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, the which any prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, and at the request of any Selling Shareholder, 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 Purchaser 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 the light of the circumstances under which they were made, not misleading;.
(xi) 4.8 Otherwise use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Commission.
(xiii) use 4.9 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be cause all Registrable Securities included in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply to be listed, upon official notice of such certificates; and
(xv) in the case of an Underwritten Offeringissuance, cause the appropriate officers on any securities exchange or quotation system on which any of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, securities of the same class as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. Securities are then listed.
4.10 The Company may require each Selling Shareholder holder whose Registrable Securities are being registered to, and each underwritersuch holder, if anyas a condition to including Registrable Securities in such registration statement, to shall, furnish the Company in writing and the underwriters with such information and affidavits regarding each Selling Shareholder or underwriter such holder and the distribution of such Registrable Securities as the Company and the underwriters 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters writing in connection with such offering containing representationsregistration statement. At any time during the effectiveness of any registration statement covering Registrable Securities offered by a holder, warranties, indemnities and agreements customarily included (but not inconsistent with if such holder becomes aware of any change materially affecting the covenants and agreements accuracy of the Company information contained herein) by an issuer of common stock in such underwriting agreementsregistration statement or the prospectus (as then amended or supplemented) relating to such holder, it will immediately notify the Company of such change.
(c) Each Selling Shareholder agrees that upon 4.11 Upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x)4.7, such Selling Shareholder shall each holder will forthwith discontinue such Selling Shareholder’s holder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto to such Registrable Securities until such Selling Shareholder’s receipt of holder receives the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 4.7 and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, Company all copies, other than permanent file copies, then in such Selling Shareholder’s holder's possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In .
4.12 As used in this Agreement, the event term "best efforts" shall not mean efforts which require the Company shall give such noticeperforming party to do any act that is unreasonable under the circumstances or to expend any funds other than reasonable out-of-pocket expenses incurred in satisfying its obligations hereunder, any applicable one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) including but not limited to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus fees, expenses and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders disbursements of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form)its accountants, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports counsel and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationprofessionals.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Us Bancorp \De\), Registration Rights Agreement (Us Bancorp \De\)
Registration Procedures. (a) If and whenever the Company is required to effect registration, or to use reasonable its best efforts to effect the registration registration, of any Registrable Securities under the Securities Act Registerable Securities, as provided in Section 5.1Sections 3.1 and 3.2 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a Commission the requisite registration statement to effect such registration registration, including all amendments and supplements thereto (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreementeffective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall furnish such documents to each Holder selling Registerable Securities covered by such registration statement and each underwriter, if any, participating in the offering of the Registerable Securities and their respective counsel, which documents will be subject to the review and comments of each such Holder, each underwriter and their respective counsel; and provided further, that the Company may discontinue any registration of its securities which are not Registrable Registerable Securities and, as to registration pursuant to Section 3.2 hereof, the Company may discontinue any registration of securities covered thereby, in each case, at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing ;
(b) notify each Holder selling Registerable Securities covered by such registration statement of the Commission's requests for amending or any amendments thereto (including prospectuses or supplements thereto), supplementing the Company will furnish to registration statement and the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counselprospectus, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities Registerable Securities covered by such registration statement, statement in each case for such period as shall be required for the disposition of all of such Registerable Securities in accordance with the terms intended method of this Article Vdistribution thereof; provided that such period need not extend beyond the Shelf Registration Period;
(iiic) furnish furnish, without charge, to each Selling Shareholder Holder selling Registerable Securities covered by such registration statement and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as any Holder and such Selling Shareholder and underwriter, if any, underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use reasonable its best efforts (i) to register or qualify such Registrable all Registerable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions States of the United States of America where an exemption is not available and as any Selling Shareholder and any underwriter of the securities being sold Holder or Holders selling Registerable Securities covered by such Selling Shareholder registration statement or any managing underwriter shall reasonably request, (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 may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling ShareholderHolder or Holders; provided, except however, that the Company shall not for any such purpose be required to (A) execute a general consent to service of process, or to qualify generally to do business as a foreign corporation corporation, in any jurisdiction wherein where it would is not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(ve) use 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable all Registerable Securities covered by such registration statement to be registered with or approved by such other Federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to enable the Selling Shareholder(s) thereof Company and counsel to any Holder or Holders selling Registerable Securities covered by such registration statement to consummate the disposition of such Registrable Registerable Securities;
(viif) furnish to each Holder selling Registerable Securities covered by such registration statement and each underwriter, if any, participating in connection with an Underwritten Offeringthe offering of the securities covered by such registration statement, obtain for each Selling Shareholder and underwriter:
a signed counterpart of (Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(Bii) a “"comfort” " letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s 's financial statements included or incorporated by reference 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' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered (at the time of such registration) in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the legal opinion, such other legal matters, and, in the case of the accountants' comfort letter, such other financial matters, as such Holder or Holders, or the underwriters, may reasonably request;
(viiig) promptly make available for inspection immediately notify the Holders selling Registerable Securities covered by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwritersmanaging underwriter, if any, participating in the offering of the following events:
securities covered by such registration statement (Ai) the filing of the when such registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the such registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation or threatening of any proceedings by any Person for that purpose; and
(Div) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable of the Registerable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
; and (xv) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct or, in the case of the Shelf Registration, at any time during the Shelf Registration Period, upon discovery that, or upon 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, 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, andin the light of the circumstances under which they were made, and in the case of this clause (v), at the request of any Selling Shareholder, Holder or Holders selling Registerable Securities covered by such registration statement promptly prepare and furnish to such seller Holder or Holders and each managing underwriter, if any, participating in the offering of the Registerable Securities, a reasonable number of copies of a supplement to or an amendment of such registration statement or 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiih) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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 promulgated thereunder, and promptly furnish to the Holders a copy of any amendment or supplement to such registration statement or prospectus;
(xiiii) use its reasonable best efforts cause to assist Selling Shareholders who made be maintained a request to transfer agent and registrar (which, in each case, may be the Company to provide for a third party “market maker” Company) for the Class P SharesRegisterable Securities from and after the date of such registration;
(xivj) cooperate with the Selling Shareholders and the managing underwriter use all reasonable efforts to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of cause all Registerable Securities covered by such registration statement a supply to be quoted on the National Market System ("National Market System") of the National Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") within the meaning of Rule 11Aa2-1 of the Commission if the quoting of such certificatesRegisterable Securities is then permitted under NASDAQ rules; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers or if no similar securities of the Company to are then so quoted, use all reasonable best efforts to facilitate (x) secure designation of all offeringssuch Registerable Securities as a NASDAQ National Market System security or (y) failing that, including cause all such Registerable Securities to be listed on a national securities exchange or (z) failing that, to secure NASDAQ authorization for such Registerable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to preparing marketing and offering materialssuch Registerable Securities with the National Association of Securities Dealers, preparing, making presentations at, and otherwise participating in any “road shows” Inc.; (domestic and foreignk) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts deliver promptly to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant counsel to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder Holders selling Registerable Securities covered by such registration statement and each underwriter, if any, participating in the offering of the Registerable Securities, upon request, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to such registration statement;
(l) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement;
(m) make available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company's businesses) in their marketing of Registerable Securities;
(n) in the case of a Shelf Registration, upon the occurrence of any event or the discovery of any facts, each as contemplated by Section 3.3(g)(v) hereof, use its best efforts to 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 documents so that, thereafter, such prospectus will not contain at the time of such delivery any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(o) enter into customary agreements (including an underwriting agreement in customary form) and take all such other action, if any, as the Holders participating in such offering or the underwriters shall reasonably request in order to expedite or facilitate the disposition of the Registerable Securities pursuant to this Agreement. The Company may require the Holders selling Registerable Securities covered by such registration statement to furnish the Company in writing such information regarding each Selling Shareholder or underwriter the Holders and the distribution of such Registrable the Registerable Securities as the Company may from time to time reasonably request in writing. In the event of a registration effected pursuant to complete Section 3.1 or amend 3.2 hereof, if a Holder fails to provide such information and the information required failure by such Holder to furnish such information would prevent or unreasonably delay the registration statement.
(b) Without limiting any statement relating to such registration from being declared effective by the Commission, the Company may exclude such Holder's Registerable Securities from such registration, which right of the foregoingCompany shall, in the event that case of a registration effected pursuant to Section 3.1 hereof, be subject (i) in the offering case of Registrable a New Money Holder, to the consent of the New Money Holders of not less than a majority of the Registerable Securities is to be made by or through an underwriter, the Company, if requested included in such registration by the underwriterNew Money Holders (other than such New Money Holder's Registerable Securities), shall enter into an underwriting agreement with and (ii) in the case of a managing underwriter or underwriters in connection with such offering containing representationsNote Holder, warranties, indemnities and agreements customarily included (but not inconsistent with to the covenants and agreements consent of the Company contained herein) by an issuer Note Holders who hold a majority of common stock the Registerable Securities to be included in such underwriting agreements.
registration by the Note Holders (c) Each Selling Shareholder agrees other than such Note Holder's Registerable Securities). The Holders agree that upon receipt of any written notice from the Company of the happening of any event of the kind described in paragraph (g)(iii) or (v) of this Section 5.6(a)(x)3.3, such Selling Shareholder shall forthwith each of the Holders will discontinue such Selling Shareholder’s its disposition of Registrable Registerable Securities pursuant to the applicable registration statement and prospectus relating thereto until to such Selling Shareholder’s Registerable Securities until, in the case of paragraph (g)(iii) of this Section 3.3, its receipt of notice that the stop order has been lifted or the proceedings have been dropped or, in the case of paragraph (g)(v) of this Section 3.3, its receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (g)(v) of this Section 5.6(a)(x) 3.3 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 Shareholder’s possession its possession, of the prospectus relating to such Registerable Securities current at the time of receipt of any such notice relating notice. If the disposition by the Holders of their securities is discontinued pursuant to such Registrable Securities. In the event immediately preceding sentence, the Company shall give such notice, any applicable one hundred twenty (120) day extend the period during which such of effectiveness of the registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of a written notice regarding to the happening of an event of the kind described in Section 5.6(a)(x) to Holders and including the date when all such Selling Shareholders the Holders shall receive such a have received notice that the stop order has been lifted or the proceedings have been dropped, or copies of the supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
contemplated by paragraph (dg)(v) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information availablethis Section 3.3, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationapplicable.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Planet Hollywood International Inc), Registration Rights Agreement (Leisure Ventures Pte LTD)
Registration Procedures. (a) If and whenever Whenever the Stockholder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company is required to shall use 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 Section 5.1Stockholder’s intended method of disposition thereof, Section 5.2 and Section 5.3 pursuant thereto the Company shall as expeditiously as reasonably possibleshall:
(i) (A) prepare and file with the SEC Securities and Exchange Commission a Registration Statement (of the form stipulated by this Agreement, if applicable) with respect to such Registrable Securities as soon as reasonably practicable, but in any event within twenty (20) Business Days, if a Short-Form Registration, and thirty (30) Business Days, if a Long-Form Registration, following the date of a demand for registration statement pursuant to effect such registration Section 1(a) or Section 1(b) of this Agreement, as applicable, and thereafter (B) use its reasonable best efforts to cause such registration statement Registration Statement (1) to become effective as soon as practicable, and remain effective pursuant to in any event within fifteen (15) days, if the terms of this Agreement; providedSecurities and Exchange Commission indicates it will not review the Registration Statement, howeverand ninety (90) days, that if the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to and Exchange Commission indicates it will review the effective Registration Statement, in each case, following the date of the registration statement relating thereto; provided, further filing such Registration Statement (provided that within a reasonable time before filing such registration statement a Registration Statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will shall furnish to the one counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) Stockholder copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such counsel, ) and such review (2) to remain effective and comment to be conducted in compliance with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority provisions of the Securities Act until all Registrable Securities included (and any other securities, if applicable) covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to Registration Statement or such Selling Shareholderssecurities have been withdrawn;
(ii) respond to written comments received from the Securities and Exchange Commission upon a review of any Registration Statement in a timely manner;
(iii) promptly notify the Stockholder of the effectiveness of each Registration Statement filed hereunder; by 11:00 a.m. (New York time) on the second Business Day following such effectiveness, file with the Securities and Exchange Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement; and prepare and file with the SEC Securities and Exchange Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith therewith, and otherwise take such actions, as may be necessary to keep such registration statement Registration Statement effective until the earlier of (A) the date as of which the Stockholder may sell all of the Registrable Securities covered by such Registration Statement pursuant to Rule 144 under the Securities Act without limitation, restriction or condition thereunder, and to (B) the date on which all of such Registrable Securities have been disposed of by the Stockholder, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case Registration Statement during such period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such Registration Statement;
(iiiiv) promptly furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), Stockholder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus contained included in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, the Stockholder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderthe Stockholder;
(ivv) if applicable, use its reasonable best efforts to register or qualify such Registrable Securities the shares covered by such registration statement Registration Statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder Stockholder shall reasonably request, request and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except the Stockholder (provided 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 (iv) be obligated to be so qualifiedsubparagraph, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction);
(vvi) notify the Stockholder 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, as expeditiously as possible following the happening of such event, prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(vii) use its reasonable best efforts to (x) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed andlisted, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or (y) if such listing is not then permitted, or no such similar securities issued by the Company are then so listed, secure a designation and quotation of all of the Registrable Securities covered by each Registration Statement on the OTC Bulletin Board;
(viii) enter into and perform such customary agreements (including underwriting agreements in customary form) and use commercially its reasonable best efforts to cause take all such other actions as the Stockholder or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange (including effecting a stock split or the NASDAQ Stock Marketa combination of shares);
(viix) 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 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;
(x) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, and which requirement will be deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q and 10-K and Current Reports on Form 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(xi) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, the Company shall promptly notify the Stockholder and use its reasonable best efforts promptly to obtain the withdrawal of such order;
(xii) use its reasonable best 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 to enable the Selling Shareholder(s) Stockholder thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(Dxiii) cooperate with the receipt Stockholder and any broker or dealer through which the Stockholder proposes to sell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by the Stockholder.
(b) If the Stockholder has requested that any Registrable Securities be registered pursuant to this Agreement, it shall deliver to the Company of any notification such requisite information with respect to the suspension of the qualification of any itself and its Registrable Securities as the Company may reasonably request for sale under inclusion in the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
Registration Statement (x) notify in writing each Selling Shareholder, 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, and the prospectus included in such registration statement, therein) 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 is necessary to make the statements therein not misleading, and, at the request of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECSecurities and Exchange Commission, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from will promptly notify the Company of the happening of any event as a result of which any information set forth in the Registration Statement furnished by or regarding the Stockholder, its Registrable Securities or its plan of distribution contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading.
(c) The Stockholder shall not effect sales of any securities covered by the Registration Statement (i) prior to the withdrawal of any stop order suspending the effectiveness of the kind described in Section 5.6(a)(x)Registration Statement, such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition or of any order suspending or preventing the use of any related prospectus or suspending the registration or qualification of any Registrable Securities pursuant to included in the applicable registration statement and prospectus relating thereto until Registration Statement for sale in any jurisdiction where such Selling Shareholder’s shares had previously been registered or qualified or (ii) after receipt of facsimile or other written notice from the Company instructing the Stockholder to suspend sales to permit the Company to correct or update the Registration Statement or prospectus until the Stockholder receives copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus that corrects any such misstatement(s) or omission(s) and receives notice that any required post-effective amendment has become effective. The Stockholder agrees that it will immediately discontinue offers and sales of Registrable Securities under the Registration Statement until the Stockholder receives copies of a supplemented or amended prospectus that corrects any such prospectus shall have been filed with the SECmisstatement(s) or omission(s) and receives notice that any post-effective amendment has become effective.
(d) With a view to making available Notwithstanding anything herein to the holders contrary, the Company shall have the right to suspend the use of a Registration Statement for a period of not greater than forty-five (45) consecutive days and for not more than ninety (90) days in any twelve (12) month period (“Blackout Period”), if, in the good faith opinion of the Board of Directors, after consultation with counsel, material, nonpublic information exists, including, without limitation, the proposed acquisition or divestiture of assets by the Company, a strategic alliance or a financing transaction involving the Company or the existence of pending material corporate developments, the public disclosure of which would be necessary to cause the Registration Statement to be materially true and to contain no material misstatements or omissions, and in each such case, where, in the good faith opinion of the Board of Directors, such disclosure would be reasonably likely to have a material adverse effect on the Company or on the proposed transaction. The Company must give the Stockholder notice promptly upon knowledge that a Blackout Period (without indicating the nature of such Blackout Period) may occur and prompt written notice if a Blackout Period will occur. Upon the conclusion of a Blackout Period, the Company shall provide the Stockholder written notice that the Registration Statement is again available for use.
(e) In the event the Stockholder’s Registrable Securities the benefits of Rule 144 under the cease to be Registrable Securities Act and any other rule pursuant to clauses (C) or regulation (D) of the SEC that may at any time permit a holder to sell securities definition of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form)“Registrable Securities” in Section 10, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under if requested by the Securities Act;
(ii) Stockholder, use reasonable best efforts to file assist the Stockholder in effecting the transfer or sale of such securities in accordance with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 (or any similar provisions then in force) under the Securities Act and of the Exchange Act, including without limitation, providing customary instructions, opinions or other documentation or actions required to effect a copy of the most recent annual transfer or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationsuch securities.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Centric Brands Inc.), Registration Rights Agreement
Registration Procedures. (a) If and whenever In the case of each registration, qualification, or compliance effected by the Company is required pursuant to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.13 hereof, Section 5.2 and Section 5.3 the Company shall will keep each Holder reasonably advised in writing (which may include e-mail) as expeditiously to the initiation of each registration, qualification, and compliance and as reasonably possibleto 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 SEC Commission with respect to such Registrable Securities, a registration statement to effect such registration on Form SB-2 or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and thereafter which form shall be available for the sale of the Registrable Securities in accordance with the intended method(s) of distribution thereof, and use its commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant throughout the Effectiveness Period;
(b) if a registration statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the 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 satisfaction of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto Commission;
(including prospectuses or supplements thereto)c) upon telephonically confirming with the Commission the effectiveness of the Registration Statement, the Company will furnish shall immediately and simultaneously notify all Holders via facsimile of the effectiveness of the Registration Statement. The Company shall, by 9:30 am Eastern Time on the Trading Day after the Effectiveness, file a Form 424(b)(5) with the Commission. Failure to so notify the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment Holder within 1 Trading Day of such counsel, and such review and comment to notification from the Commission of effectiveness shall be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing deemed a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;Registration Event.
(iid) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and during the Effectiveness Period;
(e) furnish, without charge, to comply with the provisions each Holder of the Registrable Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with by 9:00 a.m. (New York City time) on the terms of this Article V;
day following the Effective Date (iiii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such a reasonable number of conformed copies of such registration statement and of (including any exhibits thereto other than exhibits incorporated by reference), each subsequent amendment and supplement thereto and such additional copies as such Holder may reasonably request, (in each case including all exhibits), such ii) a reasonable number of copies of the prospectus contained included 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) and such additional copies as such Holders may reasonably request, in conformity with the requirements of the Securities Act, and (iii) such other documents as such Selling Shareholder and underwriter, if any, Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderHolder, but only during the Effectiveness Period;
(ivf) 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 Shareholder and any underwriter Holder 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 Shareholder 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 Shareholder and underwriter Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except Holder; provided that the Company shall not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualifiede), (Bii) subject itself to taxation in any such jurisdiction jurisdiction, or (Ciii) file a general consent to general service of process in any such jurisdiction;
(vg) use reasonable best 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, 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 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;
(xih) use reasonable best efforts to preventcomply, and obtain continue to comply during the withdrawal of, any order suspending the effectiveness of period that such registration statement;
(xii) otherwise use reasonable best 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 SEC, and make available Commission with respect to Selling Shareholders, as soon as reasonably practicable, an earnings statement the disposition of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of all securities covered by such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiiii) 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;
(j) use its reasonable best efforts to assist Selling Shareholders who made a request cause all the Registrable Securities covered by the Registration Statement to be quoted on the NASD OTC Bulletin Board or such other principal securities market on which securities of the same class or series issued by the Company to provide for a third party “market maker” for the Class P Sharesare then listed or traded;
(xivk) provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times;
(l) cooperate with the Selling Shareholders 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 managing underwriter to facilitate the timely preparation and Registration Statement within five Trading Days after delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, to the Company 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 Holders may request;
(m) during the Effectiveness Period, refrain from bidding for or purchasing any Common Stock or any right to purchase Common Stock or attempting to induce any Person to purchase any such Selling Shareholders may request and keep available and make available security or right if such bid, purchase or attempt would in any way limit the right of the Holders to sell Registrable Securities by reason of the Company’s transfer agent prior to limitations set forth in Regulation M under the effectiveness of such registration statement a supply of such certificates1934 Act; and
(xvn) in take all other reasonable actions necessary to expedite and facilitate disposition by the case of an Underwritten Offering, cause the appropriate officers Holders of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECRegistration Statement.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Pharmafrontiers Corp), Registration Rights Agreement (Pharmafrontiers Corp)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 2.1 and 2.2 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective pursuant effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall as promptly as practicable furnish such documents to the terms Purchasers and each underwriter, if any, participating in the offering of this Agreementthe Registrable Securities and their respective counsel, which documents will be subject to the review and comments of the Purchasers, each underwriter and their respective counsel; and provided, further, 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) notify the Purchasers of the Commission's requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the terms intended method of this Article Vdistribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 365 days;
(iiic) furnish furnish, without charge, to each Selling Shareholder the Purchasers and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingsdocuments, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus Purchasers and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that underwriters may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Actreasonably request;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nm Acquisition Corp), Stock Purchase Agreement (Nextlink Communications Inc / De)
Registration Procedures. (a) If and whenever the Company Amtran is required to use reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Section, Section 5.2 and Section 5.3 the Company shall Amtran shall, as expeditiously as reasonably possible:
(iA) prepare and file with the SEC United States Securities and Exchange Commission (the "COMMISSION") a registration statement to effect such registration on any form for which Amtran then qualifies or which counsel for Amtran shall deem appropriate, and thereafter which form shall be available for the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreementeffective; provided, however, PROVIDED that the Company Amtran 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements theretoas provided in Section 7(a), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iiB) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such registration statement; PROVIDED that before filing with the Commission a registration statement or prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of any registration statement, Amtran shall (i) furnish to the underwriters and to one counsel selected by ILFC copies of all such documents proposed to be filed, which documents shall be subject to the review of the underwriters and such counsel, and (ii) notify ILFC of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(iiiC) furnish furnish, without charge, to each Selling Shareholder ILFC and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter such number of conformed copies of such the registration statement and of statement, each amendment and supplement thereto (in each case including all exhibitsexhibits thereto), such number of copies of and the prospectus contained included in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, ILFC may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderILFC;
(ivD) use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably requestILFC, and take the underwriters reasonably requests and do any and all other action acts and things which may be reasonably necessary or or, advisable to enable such Selling Shareholder ILFC and each underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except Securities; PROVIDED that the Company Amtran shall not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualifiedD), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) file a general consent to general service of process in any such jurisdiction;
(vE) use 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 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 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 by virtue of the business and operations of Amtran to enable the Selling Shareholder(s) thereof ILFC to consummate the disposition of such Registrable Securities;
(viiF) in connection with an Underwritten Offering, obtain for each Selling Shareholder immediately notify the managing underwriter and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, ILFC 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 Amtran'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 the request of any Selling Shareholder, misleading and Amtran shall promptly prepare and furnish to such seller a reasonable number of copies of ILFC 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 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;
; (xiG) use reasonable its best efforts to preventcause all such Registrable Securities to be listed on a national securities exchange and on each securities exchange on which similar securities issued by Amtran are then listed, and obtain enter into such customary agreements including a listing application and indemnification agreement in customary form (PROVIDED that the withdrawal ofapplicable listing requirements are satisfied), any order suspending and to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement no later than the effectiveness effective date of such registration statement;
(xiiH) otherwise use reasonable best efforts enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as ILFC or the underwriters reasonably request in order to comply with all applicable rules and regulations expedite or facilitate the disposition of the SECsuch Registrable Securities, and including customary indemnification;
(I) make available for inspection by ILFC, any underwriter participating in any disposition pursuant to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement and any attorney, accountant or other agent retained by ILFC or underwriter (collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of Amtran and its subsidiaries (collectively, "RECORDS"), if any, as shall satisfy be reasonably necessary to enable them to exercise their due diligence responsibility, and cause Amtran's and its subsidiaries' officers, directors and employees to supply all information and respond to all inquiries reasonably requested by any such Inspector in connection with such registration statement. Notwithstanding the provisions foregoing, Amtran shall have no obligation to disclose any Records to the Inspectors in the event Amtran determines that such disclosure is reasonably likely to have an adverse effect on Amtran's ability to assert the existence of Section 11(a) of the Securities Act and Rule 158 thereunderan attorney-client privilege with respect thereto;
(xiiiJ) use its best efforts to obtain a "cold comfort" letter from Amtran's independent public accountants in customary form and covering such matters of the type customarily covered by "cold comfort" letters; and
(K) 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 Class P Shares;
(xiv) cooperate with the Selling Shareholders obtain an opinion of counsel from Amtran's counsel in customary form and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable covering such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers matters of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating type customarily covered in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling opinions of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters counsel in connection with such offering 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 such underwriting agreementstransactions.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Purchase and Investor Rights Agreement (Amtran Inc), Purchase and Investor Rights Agreement (Amtran Inc)
Registration Procedures. (a) If and whenever the Company is required to file a registration statement with respect to, or to use its reasonable best efforts to effect or cause the registration of of, any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(ia.) prepare and file with the SEC a registration statement on an appropriate form with respect to effect such Registrable Securities and, if such registration and thereafter statement is not an automatically effective registration statement, use 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 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 within a reasonable time before filing such a registration statement or prospectus, or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to counsel for the counsel selected by the Shareholders which are including sellers of Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib.) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective 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, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition 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 furnish to counsel for the sellers of Registrable Securities covered by such registration statement copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iiic.) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder 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, excluding 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (UCP, Inc.), Registration Rights Agreement (UCP, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 2.1 and 2.2 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective pursuant effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall as promptly as practicable furnish such documents to the terms Purchasers and each underwriter, if any, participating in the offering of this Agreementthe Registrable Securities and their respective counsel, which documents will be subject to the review and comments of the Purchasers, each underwriter and their respective counsel; and provided, further, 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) notify the Purchasers of the Commission's requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the terms intended method of this Article Vdistribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 365 days;
(iiic) furnish furnish, without charge, to each Selling Shareholder the Purchasers and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as the Purchasers and such Selling Shareholder and underwriter, if any, underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use its reasonable best efforts (i) 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 Shareholder and any underwriter States of the securities being sold by such Selling Shareholder United States of America where an exemption is not available and as the Purchasers or any managing underwriter shall reasonably request, (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 may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Purchasers to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling Shareholderthe Purchasers, 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 subsection (ivd) be obligated to be so qualified, (B) subject itself qualified or to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(ve) use 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 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 reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to enable the Selling Shareholder(s) thereof Company and counsel to the Purchasers to consummate the disposition of such Registrable Securities;
(viif) furnish to the Purchasers and each underwriter, if any, participating in connection with an Underwritten Offeringthe offering of the securities covered by such registration statement, obtain for each Selling Shareholder and underwriter:
a signed counterpart of (Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(Bii) a “"comfort” " letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s 's or any other entity's financial statements included or incorporated by reference 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' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the legal opinion, such other legal matters;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixg) promptly notify in writing the Purchasers and each Selling Shareholder and the underwritersmanaging underwriter, if any, participating in the offering of the following events:
securities covered by such registration statement (Ai) the filing of the when such registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the such registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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 any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, andin the light of the circumstances under which they were made, and in the case of this clause (v), at the request of any Selling Shareholder, the Purchasers promptly prepare and furnish to such seller the Purchasers and each managing underwriter, if any, participating in the offering of the Registrable Securities, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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; and (vi) at any time when the representations and warranties of the Company contemplated by Section 2.4(a) or (b) hereof cease to be true and correct;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiih) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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 promulgated thereunder, and promptly furnish to the Purchasers a copy of any amendment or supplement to such registration statement or prospectus;
(xiiii) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration;
(i) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of cause all Registrable Securities covered by such registration statement a supply to be listed on the NASDAQ "national market system" or the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such certificates; and
Registrable Securities is then permitted under the rules of such exchange, or (xvii) in the case of an Underwritten Offeringif no similar securities are then so listed, cause the appropriate officers of the Company to use its reasonable best efforts to facilitate (x) cause all offeringssuch Registrable Securities to be listed on a national securities exchange or (y) failing that, including secure designation of all such Registrable Securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or (z) failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to preparing marketing and offering materialssuch shares with the National Association of Securities Dealers, preparing, making presentations at, and otherwise participating in any “road shows” Inc.;
(domestic and foreignk) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts deliver promptly to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant counsel to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder Purchasers and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to such registration statement;
(l) use its reasonable 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, no later than the effective date of the registration statement; and
(n) in connection with any underwritten public offering, make available its senior executive officers, directors and chairman and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company's business) in their marketing of Registrable Securities. The Company may require the Purchasers to furnish the Company in writing such information regarding each Selling Shareholder or underwriter the Purchasers and the distribution of such the 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder writing. The Purchasers agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in paragraph (g)(iii) or (v) of this Section 5.6(a)(x)2.3, such Selling Shareholder shall forthwith the Purchasers will, to the extent appropriate, discontinue such Selling Shareholder’s their disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until to such Selling Shareholder’s Registrable Securities until, in the case of paragraph (g)(v) of this Section 2.3, their receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (g)(v) of this Section 5.6(a)(x) 2.3 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 Shareholder’s possession their possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice relating notice. If the disposition by the Purchasers of their securities is discontinued pursuant to such Registrable Securities. In the event foregoing sentence, the Company shall give such notice, any applicable one hundred twenty (120) day extend the period during which such of effectiveness of the registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all such Selling Shareholders the Purchasers shall receive such a have received copies of the supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
contemplated by paragraph (dg)(v) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirementsthis Section 2.3; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action so extend such period, the Purchasers' request pursuant to this Section 5.6(e) that would result in the failure following which such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, registration statement was filed shall not be counted for purposes of the Investor Shareholders, requests for registration to which the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyPurchasers are entitled pursuant to Section 2.1 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp), Registration Rights Agreement (Nextlink Communications Inc /De/)
Registration Procedures. (a) If and whenever the Company is required to use reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall will, as expeditiously as reasonably 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 SEC a registration statement with respect to effect such registration Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; effective, provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities is being effected pursuant to Section 2 at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period not in excess of 270 days and to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC thereunder with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition 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 furnish to counsel selected pursuant to Section 7 hereof by the Holders of the Registrable Securities covered by such registration statement to represent such Holders, copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iii) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(iv) use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderSeller, 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 where, but for the requirements of this clause (iv) ), it would not be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use 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 Shareholder(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 Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case 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 public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 4, 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 Shareholdersuch 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiivii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve practicable (12) months, but not more than eighteen (18months) 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;
(viii) (A) use its best efforts to list such Registrable Securities on any securities exchange on which the Common Stock is then listed (or if the Common Stock is not then listed, on any securities exchange requested) if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange; (B) if such Registrable Securities are Common Equivalent Securities, upon the reasonable request of sellers of a majority of shares of such Registrable Securities, use its best efforts to list the Common Equivalent Securities and, if requested, the Common Stock underlying such Common Equivalent Securities, notwithstanding that at the time of request such sellers hold only Common Equivalent Securities, on any securities exchange so requested, if such Registrable Securities are not already so listed, and if such listing is then permitted under the rules of such exchange; (C) and 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;
(ix) 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 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;
(x) 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 (provided that Registrable Securities constitute at least 25% of the securities covered by such registration statement);
(xi) 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;
(xii) notify counsel (selected pursuant to Section 7 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 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;
(xiii) 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 its reasonable best efforts of any preliminary prospectus and, if any such order is issued, to assist Selling Shareholders who made a request to obtain the Company to provide for a third party “market maker” for withdrawal of any such order at the Class P Sharesearliest possible moment;
(xiv) 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, without limitation, 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;
(xv) cooperate with the Selling Shareholders 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 lawlegends) 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 Selling Shareholders Holders may request and keep available and make available request;
(xvi) obtain for delivery to the Company’s transfer agent prior Holders of Registrable Securities being registered and to the effectiveness of underwriter or agent an opinion or opinions from counsel for the Company in customary form and in form, substance and scope reasonably satisfactory to such registration statement a supply of such certificatesHolders, underwriters or agents and their counsel; and
(xvxvii) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the case disposition of an Underwritten Offering, cause such Registrable Securities and their respective counsel in connection with any filings required to be made with the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the CompanyNASD. The Company may require each Selling Shareholder 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 Shareholder 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in clause (vi) of this Section 5.6(a)(x)4, such Selling Shareholder shall Holder will forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s Holder's receipt of the copies of the supplemented or amended prospectus contemplated by clause (vi) of this Section 5.6(a)(x) 4, 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 Shareholder’s possession Holder'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 one hundred twenty the period mentioned in clause (120ii) day period during which such registration statement must remain effective pursuant to of this Agreement Section 4 shall be extended by the number of days during the period from and including the date of the giving of a written such notice regarding the happening pursuant to clause (vi) of an event of the kind described in this Section 5.6(a)(x) to 4 and including the date when all each seller of Registrable Securities covered by such Selling Shareholders 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 SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken clause (including through the Company’s transfer agentvi) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Kindercare Learning Centers Inc /De), Registration Rights Agreement (KCLC Acquisition Corp)
Registration Procedures. (a) If and whenever Whenever any Holder has requested that any Registrable Shares be registered pursuant to this Agreement, the Company is required to will use its commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under Shares in accordance with the Securities Act intended method of disposition thereof as provided in Section 5.1promptly as is practicable, Section 5.2 and Section 5.3 pursuant thereto the Company shall will as expeditiously as reasonably possiblepracticable:
(i) prepare and file with the SEC SEC, pursuant to Section 4.1.1(b) with respect to any Demand Registration, a registration statement on any appropriate form under the Securities Act with respect to effect such registration Registrable Shares and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, however, provided that as far in advance as 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 within a reasonable time deems practicable before filing such registration statement or any amendments thereto (including prospectuses or supplements amendment thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) selling Holders copies of reasonably complete drafts of all such documents proposed prepared to be filed, which documents will be subject to the review and comment of such counselfiled (including exhibits), and any such review and comment Holder shall have the opportunity to be conducted with reasonable promptness object to any information relating to such Holder contained therein and the Company shall not file will make corrections reasonably requested by such Holder that are reasonably acceptable to the Company with respect to such information prior to filing any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersregistration statement or amendment;
(ii) except in the case of the Shelf Registration, prepare and file with the SEC such amendments, post-effective amendments, and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of one hundred eighty (180) days (or such lesser period, if any, ending on the date the date on which all the Registrable Shares subject thereto have been sold in the manner set forth and as contemplated in such registration statement) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(iii) in the case of the Shelf Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with Registrable Shares subject thereto for a period ending on the terms earlier of this Article V;
(iiix) furnish to each Selling Shareholder and each underwriter, if any, of 24 months after the securities being sold by such Selling Shareholder such number of conformed copies effective date of such registration statement and (y) the date on which all the Registrable Shares subject thereto have been sold in the manner set forth and as contemplated in such registration statement; provided, however, that notwithstanding the foregoing, the Company may terminate the Shelf Registration at any time after 120 days from the date that the number of Registrable Shares in the Shelf Registration cease to have a market value of at least $10 million, based on the average of the last reported trading prices of the Company’s Common Stock on the Nasdaq National Market (or other securities exchange or over-the-counter market on which the Company’s Common Stock is then traded) over the ten (10) trading days prior to the applicable date of determination; and, provided, further, that the Demanding Stockholders shall notify the Company in writing at least ten (10) days prior to any sale pursuant to such Shelf Registration;
(iv) if requested by the managing underwriter or any seller promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any seller reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such seller, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(v) furnish to each amendment seller of Registrable Shares and supplement thereto (in each case including all exhibits), the underwriters of the securities being registered 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 prospectus), 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, documents incorporated by reference therein and such other documents as such Selling Shareholder and underwriter, if any, seller or underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such Selling Shareholderseller or the sale of such securities by such underwriters (it being understood that, subject to Section 4.6 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);
(ivvi) use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement Shares under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any the managing underwriter reasonably requests (or, in the event the registration statement does not relate to an underwritten offering, as the holders of the securities being sold by a majority of such Selling Shareholder shall Registrable Shares may reasonably request, ); use its commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to be kept effective; and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof seller to consummate the disposition of the Registrable Shares owned by such Registrable Securitiesseller in such jurisdictions;
(vii) promptly notify (either orally or in connection with an Underwritten Offering, obtain for writing) each Selling Shareholder seller and underwriter:
each underwriter and (if requested by any such Person) confirm such notice in writing (A) an opinion of counsel for when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the Companysame has become effective, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in of the case issuance by any state securities or other regulatory authority of any such Person order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, and (C) of the happening of any event which does not satisfy requires the conditions for receipt making of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included any changes in such registration statement, prospectus or documents so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(viii) permit any selling Holder, which in such Holder’s sole and exclusive judgment, might reasonably be deemed to be an underwriter or 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, relating to such selling Holder and which in the reasonable judgment of such Holder and its counsel should be included;
(ix) make reasonably available members of management of the Company, as reasonably requested by the Holders of a majority of the Registrable Shares included in such registration, for assistance in the selling effort relating to the Registrable Shares covered by such registration, including, but not limited to, the participation of members of the Company’s management in road show presentations; provided, however, that no member of the Company’s management shall be required to so assist or participate to the extent that such assistance or participate materially interferes with such member’s exercise of his or her duties and day-to-day obligations as an officer or employee of the Company;
(x) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and make generally available to the Company’s securityholders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act as soon as practicable covering at least a twelve (12) month period after the effective date of a registration statement, which earnings statement shall cover at least a twelve (12) month period, and which requirement will be deemed to be satisfied if the Company complies with Rule 158 under the Securities Act;
(xi) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates;
(xii) promptly make available for inspection by any Selling Shareholderseller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder 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 (x) supply all information reasonably requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, that, unless the disclosure of such Records may be subject is necessary to the execution by such Selling Shareholder avoid or other Inspector of correct a customary confidentiality agreement misstatement or omission in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus 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 (xii) if the Company believes, after consultation with counsel for additional the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information; and provided further, however, that each Holder of Registrable Shares 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 and, in connection therewith, each such Holder of Registrable Shares agrees to cooperate with the Company and accede to the Company’s reasonable requests;
(Cxiii) cause the issuance by the SEC or Registrable Shares included in any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
to be (DA) the receipt listed on each securities exchange, if any, on which similar securities issued by the Company are then listed, or (B) quoted on the National Association 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 Dealers, Inc. Automated Quotation System or the initiation or threat of any proceeding for such purposeNasdaq National Market if similar securities issued by the Company are quoted thereon;
(xxiv) notify provide a transfer agent and registrar for all Registrable Securities registered hereunder;
(xv) cooperate with each seller and each underwriter participating in writing each Selling Shareholderthe disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, at any time Inc.;
(xvi) during the period when a the 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 promptly file all documents required to be stated therein filed with the SEC pursuant to Sections 13(a), 13(c), 14 or necessary to make 15(d) of the statements therein not misleading, and, at the request Exchange Act;
(xvii) notify each seller of Registrable Shares promptly of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to request by the SEC for the amending or an amendment supplementing of such registration statement or prospectus or for additional information;
(xviii) enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as may be necessary so that, as thereafter delivered to the purchasers are customary in connection with an underwritten registration; and
(xix) advise each seller of such Registrable SecuritiesShares, such prospectus promptly after it shall not include an untrue statement receive notice or obtain knowledge thereof, 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;
(xi) use reasonable best efforts to prevent, and obtain issuance of any stop order by the withdrawal of, any order SEC suspending the effectiveness of such registration statement;
(xii) otherwise statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to comply with all applicable rules and regulations of prevent the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt issuance of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant stop order or to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) and, if so directed by the Company, deliver to the Company, obtain its withdrawal at the Company’s expense, all copies, other than permanent file copies, then in earliest possible moment if such Selling Shareholder’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 one hundred twenty (120) day period during which such registration statement must remain effective pursuant to this Agreement shall stop order should be extended by the number of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECissued.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Stockholders Agreement (Cowen Group, Inc.), Stockholders Agreement (Cowen Group, Inc.)
Registration Procedures. (a) If and whenever Whenever any Holder has requested that any Registrable Shares be registered pursuant to this Agreement, the Company is required to will use its commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under Shares in accordance with the Securities Act intended method of disposition thereof as provided in Section 5.1promptly as is practicable, Section 5.2 and Section 5.3 pursuant thereto the Company shall will as expeditiously as reasonably possible:
(ia) prepare and file with the SEC SEC, pursuant to Section 2.1.1(b) with respect to any Demand Registration, a registration statement on any appropriate form under the Securities Act with respect to effect such registration Registrable Shares and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time as far in advance as practicable before filing such registration statement or any amendments thereto (including prospectuses or supplements amendment thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) selling Holders copies of reasonably complete drafts of all such documents proposed prepared to be filed, which documents will be subject to the review and comment of such counselfiled (including exhibits), and any such review and comment Holder shall have the opportunity to be conducted with reasonable promptness object to any information contained therein and the Company shall not file will make corrections reasonably requested by such Holder with respect to such information prior to filing any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersregistration statement or amendment;
(iib) except in the case of a Shelf Registration, prepare and file with the SEC such amendments, post-effective amendments, and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than one hundred eighty (180) days (or such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(c) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with Registrable Shares subject thereto for a period ending on the terms earlier of this Article V;
(iiix) furnish to each Selling Shareholder and each underwriter, if any, of 24 months after the securities being sold by such Selling Shareholder such number of conformed copies effective date of such registration statement and (y) the date on which all the Registrable Shares subject thereto have been sold pursuant to such registration statement;
(d) furnish to each seller of each amendment Registrable Shares and supplement thereto (in each case including all exhibits), the underwriters of the securities being registered 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 prospectus), 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, documents incorporated by reference therein and such other documents as such Selling Shareholder and underwriter, if any, seller or underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such Selling Shareholderseller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.6 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);
(ive) use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement Shares under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any the managing underwriter reasonably requests (or, in the event the registration statement does not relate to an underwritten offering, as the holders of the securities being sold by a majority of such Selling Shareholder shall Registrable Shares may reasonably request, ); use its commercially reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to be kept effective; and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter each seller to consummate the disposition of the Registrable Shares owned by such seller in such jurisdictions of the Registrable Securities owned by such Selling Shareholder(provided, except however, that the Company shall will not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction subparagraph or (Cii) file a general consent to general service of process in any such jurisdiction);
(vf) promptly notify each seller and each underwriter and (if requested by any such Person) confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, and (iii) of the happening of any event which makes any statement made in a registration statement or related prospectus untrue or which requires the making of any changes in such registration statement, prospectus or documents so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(g) permit any selling Holder, which in such Holder’s sole and exclusive judgment, might reasonably be deemed to be an underwriter or 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, which in the reasonable judgment of such Holder and its counsel should be included;
(h) make reasonably available members of management of the Company, as selected by the Holders of a majority of the Registrable Shares included in such registration, for assistance in the selling effort relating to the Registrable Shares covered by such registration, including, but not limited to, the participation of such members of the Company’s management in road show presentations;
(i) otherwise use its commercially reasonable best efforts to cause such Registrable comply with all applicable rules and regulations of the SEC, including the Securities to be listed Act and the Exchange Act and the rules and regulations promulgated thereunder and timely file complete and accurate information on each securities exchange on Forms 10-Q, 10-K and 8-K under the Exchange Act and file with the SEC and make available an earnings statement which similar securities issued by complies with Rule 158 under the Company are then listed and, if no such securities are so listed, use commercially Securities Act at the earliest reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Marketdate;
(vij) use reasonable best efforts if requested by the managing underwriter or any seller, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any seller reasonably requests to cause be included therein, including, without limitation, with respect to the Registrable Shares being sold by such seller, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities covered Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(k) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into a registration statement (in the form in which it was incorporated), deliver a copy of each such document to each seller;
(l) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition a supply of such Registrable Securitiescertificates;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viiim) promptly make available for inspection by any Selling Shareholderseller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder 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 (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, that, unless the disclosure of such Records may be subject is necessary to the execution by such Selling Shareholder avoid or other Inspector of correct a customary confidentiality agreement misstatement or omission in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus 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 if (i) the Company believes, after consultation with counsel for additional informationthe Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to clause (ii) such Holder of Registrable Shares requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Holder of Registrable Shares agrees that it 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;
(Cn) furnish to each seller and underwriter a signed counterpart of (i) an opinion or opinions of counsel to the issuance by Company, and (ii) a comfort letter or comfort letters from the SEC or any other Government Entity of any stop order suspending the effectiveness Company’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the sellers or managing underwriter reasonably requests;
(o) cause the Registrable Shares included in any registration statement or the initiation of any proceedings by any Person for that purpose; and
to be (Di) the receipt listed on each securities exchange, if any, on which similar securities issued by the Company are then listed, or (ii) quoted on the National Association of 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 Dealers, Inc. Automated Quotation System or the initiation or threat of any proceeding for such purposeNASDAQ National Market if similar securities issued by the Company are quoted thereon;
(xp) notify provide a transfer agent and registrar for all Registrable Securities registered hereunder;
(q) cooperate with each seller and each underwriter participating in writing each Selling Shareholderthe disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, at any time Inc. (“NASD”);
(r) during the period when a the 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 promptly file all documents required to be stated therein filed with the SEC pursuant to Sections 13(a), 13(c), 14 or necessary to make 15(d) of the statements therein not misleading, and, at the request Exchange Act;
(s) notify each seller of Registrable Shares promptly of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to request by the SEC for the amending or an amendment supplementing of such registration statement or prospectus or for additional information;
(t) enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as may be necessary so that, as thereafter delivered to the purchasers are customary in connection with an underwritten registration; and
(u) advise each seller of such Registrable SecuritiesShares, such prospectus promptly after it shall not include an untrue statement receive notice or obtain knowledge thereof, 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;
(xi) use reasonable best efforts to prevent, and obtain issuance of any stop order by the withdrawal of, any order SEC suspending the effectiveness of such registration statement;
(xii) otherwise statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to comply with all applicable rules and regulations of prevent the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt issuance of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant stop order or to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) and, if so directed by the Company, deliver to the Company, obtain its withdrawal at the Company’s expense, all copies, other than permanent file copies, then in earliest possible moment if such Selling Shareholder’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 one hundred twenty (120) day period during which such registration statement must remain effective pursuant to this Agreement shall stop order should be extended by the number of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECissued.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Grubb & Ellis Co), Registration Rights Agreement (Grubb & Ellis Co)
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, the Company is required to will use its reasonable best efforts to effect the registration of any the Registrable Securities under in accordance with the Securities Act as provided in Section 5.1intended method of disposition thereof, Section 5.2 and Section 5.3 pursuant thereto the Company shall will as expeditiously as reasonably possible:
(i) prepare 9.1.1 Prepare and file with the SEC a registration statement to effect such registration Registration Statement on an appropriate form under the Securities Act and thereafter use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective pursuant to at the terms of this Agreementearliest practicable date; provided, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement a Registration Statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will promptly furnish to the counsel selected by the Shareholders which are including holders of Registrable Securities in such registration to be registered pursuant to this Agreement (the “Selling ShareholdersRegistered Holders”) and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the review of the Registered Holders and comment of such counselthe underwriters, and such review and comment to be conducted with reasonable promptness and the Company shall will not file any such Registration Statement or amendment thereto, or any prospectus or any supplement thereto (other than documents incorporated by reference) to which the Selling Shareholders (representing a majority Registered Holders or the underwriters, if any, shall reasonably object in light of the Registrable requirements of the Securities included in such registration) object, in writing, on a timely basis, based on Act and any disclosure included therein that relates to such Selling Shareholders;other applicable laws and regulations.
(ii) prepare 9.1.2 Prepare and file with the SEC such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary to keep such registration statement 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, in each case Registration Statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelysuch Registration Statement or prospectus or supplement to such prospectus.
Appears in 2 contracts
Sources: Exchange Agreement (Earthstone Energy Inc), Exchange Agreement
Registration Procedures. (a) If and whenever the Company LPL is required to use its reasonable best efforts to effect or cause the registration Registration of any Registrable Securities under the Securities Act as provided in Section 5.1this ARTICLE IV, Section 5.2 and Section 5.3 LPL shall, subject to the Company shall terms of this Agreement, as expeditiously soon as reasonably possiblepracticable:
(i) prepare and file with the SEC a registration statement the requisite Registration Statement with respect to effect such registration Registrable Securities (including all exhibits and thereafter financial statements required under the Securities Act) and use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective pursuant in order to permit 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority sale of the Registrable Securities included by the Stockholders in accordance with the intended method or methods of distribution thereof described in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling ShareholdersRegistration Statement;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith Prospectus as may be necessary to keep such registration statement Registration Statement effective and to during such period, or reasonably requested by holders of the participating Registrable Securities;
(iii) comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statementRegistration Statement during such period and all stock exchange or trading system or FINRA registration, in each case in accordance with the terms of this Article Vlisting or filing requirements;
(iiiiv) furnish to each Selling Shareholder Stockholder holding such Registrable Securities and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter such number of conformed copies of such registration statement Registration Statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained Prospectus included in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, Stockholder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixi) promptly notify in writing each Selling Shareholder and the underwritersStockholder that holds Registrable Securities covered by such Registration Statement (and, if anyrequested, provide copies of the following events:
relevant documents, as soon as reasonably practicable), (A) upon the filing of the registration statement, any such Registration Statement or amendment thereto, the prospectus or any prospectus supplement related thereto or (including post-effective amendments) and when such Registration Statement or amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithsupplement thereto becomes effective, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) of the issuance by the SEC or any other Government Entity state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of such Registration Statement (and take all reasonable action to prevent the registration statement entry of such stop order or to remove it if entered, or the initiation of any proceedings by any Person for that purpose; and
), (C) if, at any time, the representations and warranties of LPL in any applicable underwriting agreement cease to be true and correct in all material respects, or (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 the prospectus included in such registration statementRegistration Statement, as then in effect, or the Prospectus related thereto or any document included therein by reference 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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 case of such Prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleadingmisleading and (ii) in the case of an event under clause (v)(i)(B) or (D), promptly file such amendments and supplements which may be required on account of such event and use its reasonable best efforts to cause each such amendment and supplement to become effective;
(xivi) promptly furnish counsel for each underwriter, if any, and for the selling Stockholders of Registrable Securities copies of any written request by the SEC (including any written comments from the SEC on such Registration Statement) or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
(vii) use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of a Registration Statement at the earliest possible time;
(viii) use reasonable best 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, if any, on which similar equity securities issued by LPL 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 FINRA;
(ix) 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 LPL, provisions regarding the delivery of opinions of counsel for LPL 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 that 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, LPL to and for the benefit of such underwriter(s) shall also be made to and for the benefit of such sellers of Registrable Securities);
(x) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by representatives of the selling Stockholders who hold Registrable Securities and any underwriters participating in any disposition pursuant hereto and by any attorney, accountant or other agent retained by any selling Stockholder or any underwriters, all pertinent financial and other records, pertinent corporate documents and properties of LPL, and cause all of LPL’s officers, directors and employees and the independent public accountants who have certified the its financial statements to make themselves available to discuss the business of LPL and to supply all information reasonably requested by any such selling Stockholders, underwriters, attorneys, accountants or agents in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility (subject to entry by each such representative, counsel or accountant into customary confidentiality agreements in a form reasonably acceptable to LPL);
(xi) permit any Beneficial Owner of Registrable Securities who, in the sole judgment, exercised in good faith, of such Stockholder, with the advice of outside legal counsel, might be deemed to be a controlling Person of LPL, to participate in the preparation of such registration statementor comparable statement and to require the insertion therein of material, furnished to LPL in writing, that in the reasonable judgment of such Stockholder, with the advice of outside legal counsel, as aforesaid, should be included to comply with applicable federal, state or local securities laws;
(xii) otherwise use reasonable best efforts on or prior to comply with all the date on which the applicable rules and regulations of the SECRegistration Statement is declared effective, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a register or qualify, and cooperate with the selling holders of Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the Registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any such selling Stockholder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to the Company keep such registration or qualification in effect, provided that LPL shall not be required to provide for a third party “market maker” for the Class P Sharesqualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(xivxiii) cooperate with the Selling Shareholders selling Stockholders of Registrable Securities and the managing underwriter or underwriters, if any, 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) representing securities sold under any registration statement, legends; and enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two Business Days prior to any sale of Registrable Securities to the underwriters;
(xiv) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered or approved by such other governmental agencies or authorities (other than any foreign governmental agencies or authorities) as may be necessary to enable the seller or sellers thereof or the underwriter or such Selling Shareholders may request and keep available and make available underwriters, if any, to consummate the Company’s transfer agent prior to the effectiveness disposition of such registration statement a supply of such certificates; andRegistrable Securities;
(xv) 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;
(xvi) 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 underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities;
(xvii) obtain for delivery to the selling Stockholders of Registrable Securities and to the underwriter or underwriters, if any, an opinion or opinions from counsel for LPL dated the effective date of the Registration Statement or, in the case event of an Underwritten Offeringunderwritten offering, cause the appropriate officers date of the Company closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingssuch holders or underwriters, as the case may be, and other their respective counsel;
(xviii) promptly incorporate in a supplement to the Prospectus or post-effective amendment to the Registration Statement such information meetings as the lead underwriter or underwriters, if any, and the selling Stockholders holding a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such class of Registrable Securities; and make all required filings of such supplement or post-effective amendment as promptly as reasonably practicable after being notified of the matters to be incorporated in such supplement or post-effective amendment;
(xix) in the case of any Marketed Underwritten Shelf Take-Down or Demand Registration, cause the senior executive officers of LPL to participate in any customary “road show” presentations and otherwise to facilitate, cooperate with and participate in each proposed offering contemplated herein and customary marketing activities organized by the underwritersselling efforts related thereto, and otherwise using their reasonable best efforts to cooperate in each case as reasonably requested by the Selling Shareholders underwriters and taking into account the needs of LPL’s business and the underwriters in the offering, marketing or selling requirements of the Registrable Securitiesmarketing process; provided, that and
(xx) in the case of an any Non-Marketed Underwritten Offering involving anticipated gross proceeds Shelf Take-Down, cause the senior executive officers of at least $500 million (LPL to participate in any customary presentations and otherwise to facilitate, cooperate with and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case as determined in good faith reasonably requested by the Requesting Shareholders (or underwriters and taking into account the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer needs of LPL’s business and the President requirements of the Company. The Company marketing process.
(b) LPL may require each Selling Shareholder and each underwriter, if any, Stockholder who is selling Registrable Securities pursuant to which any Registration is being effected to furnish the Company in writing LPL such information regarding each Selling Shareholder or underwriter such Stockholder and the distribution of such Registrable Securities as the Company LPL 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, 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 contained herein) by an issuer of common stock in such underwriting agreementswriting.
(c) Each Selling Shareholder Stockholder who is selling Registrable Securities shall cooperate with the underwriters by entering into any undertakings and taking such other actions relating to the conduct of the proposed offering which the underwriters may reasonably request to insure compliance with federal and state securities laws and the rules and requirements of FINRA or which are otherwise customary and which the underwriters may request to effectuate an offering or file a Registration Statement.
(d) Each Beneficial Owner of Registrable Securities agrees that that, upon receipt of any written notice from the Company LPL of the happening of any event of the kind described in Section 5.6(a)(x4.9(a)(v)(i)(B) and Section 4.9(a)(v)(i)(D), such Selling Shareholder shall Beneficial Owner will forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto such Registration Statement covering such Registrable Securities until such Selling Shareholder’s Beneficial Owners’ receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by Section 5.6(a)(x) and4.9(a)(v)(ii), or until such Stockholder is advised in writing by LPL that the use of the Prospectus may be resumed, and if so directed by the CompanyLPL, such Beneficial Owner shall deliver to the Company, LPL (at the CompanyLPL’s expense, ) all copies, other than permanent file copies, copies then in such Selling ShareholderBeneficial Owner’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basispossession, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyProspectus covering such Registrable Securities that was in effect prior to such amendment or supplement.
Appears in 2 contracts
Sources: Stockholders Agreement (LPL Investment Holdings Inc.), Stockholders Agreement (LPL Investment Holdings Inc.)
Registration Procedures. (a) If and whenever the Company is required to use reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 5.1 and 5.2, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(i) prepare and file with the SEC a Commission the requisite registration statement to effect such registration and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms for a period of this Agreement; providedone hundred eighty (180) days or until all of such Registrable Securities have been disposed of (if earlier), however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time ;
(ii) furnish at least five (5) business days before filing a registration statement that registers such Registrable Securities, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or any amendments thereto (including prospectuses or supplements thereto)prospectus, the Company will furnish to the one counsel selected by the Shareholders which are including holders of a majority of Registrable Securities in such registration (“Selling Shareholders”) the "Investor Counsel"), copies of all such documents proposed to be fileda registration statement, which documents will be subject to the review prospectus and comment of such counselany amendments or supplements thereto, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents thereof to which such counsel shall have reasonably objected on the Selling Shareholders (representing a majority grounds that such registration statement, prospectus, amendment or supplement does not comply in all material respects with the requirements of the Registrable Securities included in Act or the rules or regulations thereunder (it being understood that such registrationfive (5) object, in writing, on a timely basis, based on any disclosure included therein that relates business day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to such Selling Shareholderscounsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiiii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less 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, in each case statement until such time as all of such securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement;
(iiiiv) notify in writing the Investor Counsel promptly of the receipt by the Company of any notification with respect to (a) 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, (b) the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, and (c) the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(v) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold Registrable Securities covered by such Selling Shareholder 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivvi) use 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 United States jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Shareholderseller, 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 (ivSection 5.3(vi) be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(vvii) use 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best 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 by virtue of the business and operations of the Company to enable the Selling Shareholder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholderfurnish to each seller of Registrable Securities a signed counterpart, any underwriter participating in any disposition pursuant addressed to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter seller (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 (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Investor Rights Agreement (Net2000 Communications Inc), Investor Rights Agreement (Blue Water Strategic Fund I LLC)
Registration Procedures. (a) If and whenever Whenever the Company is required to use reasonable best efforts to effect the registration Holders of Registrable Securities have requested that any Registrable Securities under the Securities Act as provided in be registered pursuant to Section 5.12 or Section 3, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(i) prepare and file with the SEC Commission a registration statement on the appropriate form with respect to effect such registration Registrable Securities, and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective pursuant to as soon as reasonably practicable after the terms of this Agreementfiling thereof; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities that is being effected pursuant to Section 3 at any time prior to the effective date of the registration statement relating thereto; provided, further and provided further, that within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), including documents incorporated by reference after the initial filing of any registration statement, as soon as practicable, the Company will furnish to the counsel selected any Holder covered by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) Registration Statement copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling ShareholdersHolder;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than the period set forth in such section or such shorter period which will terminate when Registrable Securities covered by such registration statement have been sold (but not before the expiration of the applicable prospectus delivery period) and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such registration statement;
(iii) furnish to notify each Selling Shareholder and each underwriterseller of Registrable Securities requesting registration, if anypromptly after the Company shall receive notice thereof, of the securities being sold by such Selling Shareholder such number of conformed copies of time when such registration statement and has been filed;
(iv) furnish without charge to each seller 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, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference); the prospectus contained included in such registration statement (including including, without limitation, each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, ); and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(ivv) use 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 such jurisdictions within the United States as any Selling Shareholder seller reasonably requests; keep each such registration or qualification effective during the period such registration statement is required to be kept effective; and do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except seller (provided that the Company shall will not for any such purpose be required to (A1) 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; (iv) be obligated to be so qualified, (B2) subject itself to taxation in any such jurisdiction or jurisdiction; (C3) file a general consent to general service of process in any such jurisdiction;
; or (v4) use reasonable best efforts to cause such register or qualify Registrable Securities to be listed on each or take any other action under the state securities exchange on which similar securities issued by or "Blue Sky" laws of any jurisdiction if, in 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 good faith judgment of the New York Stock ExchangeBoard of Directors of the Company, the American Stock Exchange consequences of the registration, qualification or other action would be unduly burdensome to the NASDAQ Stock MarketCompany);
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition notify each seller of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 which requires the making of which, any change in the prospectus included in such registration statement, as then in effect, includes statement so that such document will not contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Shareholdersuch seller, promptly the Company will prepare and furnish a supplement or amendment to such seller a reasonable number of copies of a supplement to or an amendment of prospectus so that 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;
(xivii) use its reasonable best efforts to preventcause all such Registrable Securities to be listed on each securities exchange or exchanges, and obtain automated quotation system or over-the-counter market upon which securities of the withdrawal of, any order suspending Company of the effectiveness of such registration statementsame class are then listed;
(xiiviii) enter into such customary agreements (including, without limitation, underwriting agreements in customary form, substance and scope) and take all such other action 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;
(ix) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement Commission;
(x) in the event of the Company covering issuance of any stop order suspending the period effectiveness of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such a registration statement, which earnings 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 shall satisfy for sale in any jurisdiction, the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) Company will use its reasonable best efforts promptly to assist Selling Shareholders who made a request to obtain the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness withdrawal of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Actorder;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Alliance Resources PLC), Registration Rights Agreement (Encap Equity 1996 Limited Partnership)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.12.1 or 2.2, Section 5.2 and Section 5.3 the Company shall will, as expeditiously as reasonably possible:
(i) prepare and Prepare and, in any event within 60 calendar days after the end of the period within which requests for registration may be given to the Company, file with the SEC a registration statement with respect to effect such registration Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities that is being effected pursuant to Section 2.2 at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;.
(ii) prepare Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by any Investor (if Registrable Securities of such Investor are being registered) not exceeding sixty days 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, in each case statement during such period in accordance with the terms intended methods of this Article V;disposition by the seller or sellers thereof set forth in such registration statement, provided that before filing a registration statement or prospectus relating to the sale of Registrable Securities, or any amendments or supplements thereto, the Company will furnish to counsel and to each holder of Registrable Securities covered by such registration statement or prospectus, copies of all documents proposed to be filed, which documents will be subject to the review of such counsel, and the Company will give reasonable consideration in good faith to any comments of such counsel.
(iii) furnish Furnish to each Selling Shareholder holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits)Registrable Securities, such number of copies of the a prospectus contained in such registration statement (including each and 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, for delivery in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder and underwriter, if any, Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;Securities.
(iv) use reasonable Use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderseller, in such jurisdictions, except that the Company shall not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not where, but for the requirements of this clause (iv) be obligated to be Section 2.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction jurisdiction, or (C) file a to take any action which would subject it to general consent to or unlimited service of process in any such jurisdiction;jurisdiction where it is not then so subject.
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the 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 reasonable Use 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 Shareholder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;.
(viivi) in connection with an Underwritten Offering, obtain for Immediately notify each Selling Shareholder and underwriter:
(A) 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 Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in Section 2.3(a)(ii), upon discovery that, or upon if the happening of any event as a result of which, Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, at the request of any Selling Shareholdersuch seller, promptly prepare and furnish to such seller deliver 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 misleading;misleading in the light of the circumstances then existing.
(xivii) Otherwise use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to Selling Shareholdersits security holders, in each case as soon as reasonably practicablepraticable, but not later than 45 calendar days after the close of the period covered thereby (90 calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;.
(xiiiviii) Use its reasonable best efforts in cooperation with the underwriters to list such Registrable Securities on whatever national securities exchange such securities are then listed.
(ix) In the event the offering is an Underwritten Offering, use its reasonable best efforts to assist Selling Shareholders who made obtain a request to "cold comfort" letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters and as the underwriters and any Investor may reasonably request (if Registrable Securities of such Investor are being registered), in order to provide for a third party “market maker” for the Class P Shares;effect an underwritten public offering of such Registrable Securities.
(xivx) cooperate with the Selling Shareholders Execute and the managing underwriter to facilitate the timely preparation deliver all instruments and delivery of certificates documents (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be including in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds an underwriting agreement in customary form, including, without limitation, indemnities to the effect and to the extent provided in Section 2.4) and take such other actions and obtain such certificates and opinions as the underwriters and any Investor may reasonably request (if Registrable Securities of at least $500 million (as determined such Investor are being registered) in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected order to effect an Underwritten Offering pursuant to underwritten public offering of such Registrable Securities.
(xi) Make available for inspection by the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution seller of such Registrable Securities as 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 may from time Company, and cause all of the Company's officers, directors and employees to time supply all information reasonably request to complete requested by any such seller, underwriter, attorney, accountant or amend the information required by agent in connection with such registration statement.
(xii) Obtain for delivery to the underwriter or agent an opinion or opinions from counsel for the Company in customary form and in form and scope reasonably satisfactory to such underwriter or agent and their counsel.
(xiii) Provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date later that the effective date of such registration.
(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 underwriterwill, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x2.1(i) or Section 2.3(a)(vi), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of the Registrable Securities pursuant to the applicable any registration statement and prospectus relating thereto until covering such Selling Shareholder’s Registrable Securities until, as applicable, (i) such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x2.3(a)(vi) and, if so directed by the Company, deliver or (ii) sales are permitted to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Shareholder’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 one hundred twenty resume under Section 2.1(i).
(120c) day period during which such If 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 written notice regarding the happening of an event of the kind or described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented 2.1 or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders 2.2 involves an Underwritten Offering, each holder of Registrable Securities the benefits of Rule 144 under the agrees, whether or not such holder's Registrable Securities Act and are included in such registration, not to effect any other rule public sale or regulation of the SEC that may at distribution, including any time permit a holder to sell securities of the Company to the public without registration or sale pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required , of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon requestor of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), a written statement by without the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and consent of the Exchange Actmanaging underwriter, during a copy period commencing seven calendar days before and ending 90 calendar days (or such lesser, number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to or described in Section 2.1 or 2.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the most recent annual or quarterly report of the Company, and such other reports and documents so registration statement filed or furnished by the Company as such holder may request in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the sale Company or the managing underwriter to limit its rights under this Section 2.3; provided, however, that if a holder of Registrable Securities without registrationthat has requested a registration pursuant to Section 2.1 withdraws its request after a registration statement has been filed in response to such request, the Investors shall be deemed to have used one of the two (2) demand registrations provided for under Section 2.1 unless such holder reimburses the Company for all of its costs in connection with preparing and filing such registration statement.
(e) The Company It is understood that in any Underwritten Offering in addition to any shares of stock (the "initial shares") the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the "option shares") equal to 15% of the initial shares (or such other maximum amount as the NASD may then permit), solely to cover overallotments. Option shares to be sold shall use its reasonable best efforts to take all action necessary or appropriate upon be allocated in accordance with the request provisions of any Investor Shareholder to ensure that Class A Shareholders are, from Sections 2.1(h) and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding2.2(d), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyapplicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Apria Healthcare Group Inc), Registration Rights Agreement (Relational Investors LLC)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts by the provisions hereof to effect the registration of any shares of Registrable Securities under the Securities Act as provided in Section 5.1Act, Section 5.2 and Section 5.3 the Company shall will, as expeditiously as reasonably possible:
(ia) prepare and file with the SEC Commission a registration statement with respect to effect such registration securities and thereafter use 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 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 to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review filings and comment Commission letters of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholderscomment;
(iib) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until the latest of: (i) six months after the latest exercise period of the Warrants; (ii) twelve months after the Maturity Date of the Note or Put Note; or (iii) two years after the Closing Date, or Put Closing Date and to comply with the provisions of the Securities Act with respect to the disposition of all securities of the Registrable Securities covered by such registration statement, in each case statement in accordance with the terms Seller's intended method of this Article Vdisposition set forth in such registration statement for such period;
(iiic) furnish to the Seller, and to each Selling Shareholder and each underwriter, underwriter if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, persons reasonably may reasonably request in order to facilitate the public sale or other their disposition of the Registrable Securities owned securities covered by such Selling Shareholderregistration statement;
(ivd) use reasonable its best efforts to register or qualify such the Seller'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 Shareholder the Seller and any in the case of an underwritten public offering, the managing underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderprovided, except however, that the Company shall not for any such purpose be required to (A) 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 so qualified or to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(ve) use reasonable best 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable any securities exchange on which the Selling Shareholder(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 immediately notify the Seller and each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with under such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xig) use reasonable best efforts to prevent, and obtain make available for inspection by the withdrawal ofSeller, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts underwriter participating in any distribution pursuant to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy and any attorney, accountant or other agent retained by the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statementSeller or underwriter, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offeringall publicly available, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, non-confidential financial and other information meetings records, pertinent corporate documents and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report properties of the Company, and such other reports cause the Company's officers, directors and documents so filed or furnished employees to supply all publicly available, non-confidential information reasonably requested by the Company as such holder may request seller, underwriter, attorney, accountant or agent in connection with the sale of Registrable Securities without registrationsuch registration statement.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Subscription Agreement (Aethlon Medical Inc), Subscription Agreement (Ibiz Technology Corp)
Registration Procedures. (a) If and whenever In connection with the obligations of the Company is required with respect to use reasonable best efforts the Registration Statement pursuant to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 2(a) and 2(b) hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleshall:
(ia) prepare and file with the SEC a registration statement Registration Statement on the appropriate form under the Securities Act, which 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 in accordance with the intended method or methods of distribution as the Company is so advised of by the selling Holders thereof and (iii) shall comply as to effect such registration form in all material respects with the requirements of the applicable form and thereafter include (including through incorporation by reference, if available to the Company) all financial statements required by the SEC to be filed therewith, and the Company shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted accordance with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling ShareholdersSection 2 hereof;
(iib) prepare and file with the SEC such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary to keep such registration statement effective and to comply Registration Statement in compliance with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), 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 cause the Prospectus to be supplemented by any other required prospectus supplement, and as so supplemented to be filed under pursuant to Rule 424 under the Securities Act;
(c) in the case of a Shelf Registration, in conformity with the requirements furnish to each Holder of Registrable Securities and to each underwriter of Registrable Securities, if any, without charge, as many copies of the Securities ActProspectus, including each preliminary prospectus, and any amendment or supplement thereto and such other documents as such Selling Shareholder and underwriter, if any, Holder or Underwriter may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderSecurities;
(ivd) in the case of a Shelf Registration, use its commercially reasonable best efforts to register or qualify such the Registrable Securities covered by such registration statement under such other all applicable state securities laws or "blue sky sky" laws of such jurisdictions as any Selling Shareholder and any underwriter Holder of the securities being sold Registrable Securities covered by such Selling Shareholder Shelf Registration Statement and or any Underwriter shall reasonably requestrequest in writing by the time the applicable Shelf Registration Statement is declared 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 Shareholder and underwriter Holder or Underwriter to consummate the disposition in each such jurisdictions of the Registrable Securities owned by such Selling Shareholderdesignated jurisdiction, except provided, however, that the Company shall not for any such purpose be required to (Ai) qualify generally to do business as a foreign corporation or as a broker-dealer in any jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause (iv) be obligated to be so qualifiedSection 5(d), (Bii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72Shelf Registration, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholdernotify each Holder and, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling 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 (x) supply all information if requested by any such Inspector in connection with Holder, confirm such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify advice in writing each Selling Shareholder (i) when such Shelf Registration Statement has become effective and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or when any post-effective amendment thereto, when the same has amendments and supplements thereto become effective;
, (Bii) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) of the issuance by the SEC or any other Government Entity state securities authority of any stop order suspending the effectiveness of the registration statement such Shelf Registration Statement or the initiation of any proceedings by any Person for that purpose; and
, (Diii) if, between the receipt by effective date of such Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the Company of receives 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 (xiv) notify in writing each Selling Shareholder, 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 during the period such Shelf Registration Statement is effective which makes any statement made in such Shelf Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Shelf Registration Statement or Prospectus in order to make the statements therein not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement promptly and shall provide notice to each Holder of the withdrawal of any such order as promptly as practicable;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of such Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the selling Holders may reasonably request at least two business days prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event contemplated by Section 5(e)(iv) hereof, use its commercially reasonable best efforts to prepare a supplement or post-effective amendment to such Shelf 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, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(j) in the case of a Shelf Registration Statement, enter into and deliver all such customary agreements, documents and take such other actions (including causing the delivery of opinions of counsel and "comfort" letters of independent certified public accountants) as are reasonably required to expedite or facilitate the disposition of Registrable Securities;
(k) in the case of a Shelf Registration, upon reasonable notice make available for inspection by a representative of the Holders of the Registrable Securities, any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and any attorney or accountant designated by the Selling Holders, at reasonable times and in a reasonable manner, all financial and other records, pertinent 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, attorney or accountant in connection with a Shelf Registration Statement; provided, however, that such representatives, attorneys or accountants shall be acceptable to the Company in its judgment reasonably exercised and shall agree to enter into a written confidentiality agreement mutually acceptable to the Company and the Underwriters regarding any records, information or documents that are designated by the Company as confidential unless such records, information or documents are available to the public or disclosure of such records, information or documents is required by court or administrative order after the exhaustion of appeals therefrom and to use such information obtained pursuant to this provision only in connection with the transaction for which such information was obtained, and not for any other purpose;
(1) in the case of a Shelf Registration, provide copies of any Prospectus, any amendment to any applicable Shelf Registration Statement or amendment or supplement to any Prospectus or any document which is to be incorporated by reference into such Shelf Registration Statement or any Prospectus after initial filing of such Shelf Registration Statement, a reasonable time prior to the filing of any such Prospectus, amendment, supplement or document, to the Initial Purchasers on behalf of the Holders and Underwriters, if any, and except with respect to a Shelf Registration filed pursuant to Section 2(b)(iii) not file any such document in a form to which the Initial Purchasers on behalf of the Holders or Underwriters, if any, shall reasonably object; and make the representatives of the Company as shall be reasonably requested by the Holders or the Initial Purchasers on behalf of such Holders available for discussion of such document; provided that the requirements of this paragraph shall not apply to the Company's annual report on Form 10-K, its Quarterly Reports on Form 10-Q, its current reports on Form 8-K or any other documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (the "Exchange Act Documents"); and further provided that the Company shall promptly notify Holders of the filing of any Exchange Act Documents except for such Exchange Act Documents specifically related to the offering of other securities and not to the Registrable Securities;
(m) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of any Registration Statement; and
(n) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), in connection with the registration of the Exchange Securities, cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the TIA and execute, and use its commercially reasonable best efforts to cause the Trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner. In the case of a Shelf Registration Statement, the Company may (as a condition to such Holder's participation in a Shelf Registration) require each Holder to furnish to the Company information regarding the Holder and the proposed distribution by such Holder of any Registrable Securities as the Company may from time to time reasonably request in writing. In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any (i) notice from the Company of the happening of any event of the kind described in Section 5(e)(ii) or (iv) hereof, (ii) notice from the Company that it is in possession of material information that has not been disclosed to the public and the Company reasonably deems it to be advisable not to disclose such information in a registration statement or (iii) notice from the Company that it is in the process of a registered offering of securities and the Company reasonably deems it to be advisable to temporarily discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement (in each case, such notice being hereinafter referred to as a "Suspension Notice"), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to any Shelf Registration Statement and shall not be entitled to the benefits provided under Section 6 hereof with respect to any sales made by it in contravention of this paragraph, until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(i) or a notice in accordance with Section 5(f) hereof that any order suspending the effectiveness of the Shelf Registration Statement has been withdrawn, or, in the case of (ii) or (iii) above, until further notice from the Company that disposition of Registrable Securities may resume, provided that (except with respect to a Shelf Registration filed pursuant to Section 2(b)(iii)) such further notice will be given within 90 days of the Suspension Notice in the case of (ii) above and within 120 days of the Suspension Notice in the case of (iii) above, and provided further that in the case of (ii) and (iii) above that any Suspension Notice must be based upon a good faith determination of the Board of Directors of the Company or the Executive Committee thereof that such Notice is necessary; and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give any such notice to suspend the disposition of Registrable Securities pursuant to any Shelf Registration Statement, the Company shall extend the period during which such Shelf Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions or received notice that any order suspending dispositions of the Securities has been withdrawn. Each Holder will furnish to the Company such information regarding such Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing, but only to the extent that such information is required in order to comply with the Securities Act or any relevant state securities or Blue Sky law or obligation. Each Holder of Registrable Securities as to which any registration is being effected 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 happening of any event, in either case as a result of which, the prospectus included in which any Prospectus relating to such registration statement, as then in effect, includes contains an untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omits to state any material fact regarding such Holder or the distribution of such Registrable Securities required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, at the request of any Selling Shareholder, promptly prepare and to furnish to the Company promptly any additional information required to correct and update any previously furnished information or required such seller a reasonable number of copies of a supplement to or an amendment of that such prospectus as may be necessary so thatshall not contain, as thereafter delivered with respect to such holder or the purchasers distribution 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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 foregoingtherein, in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company, 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 light of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) day period during circumstances under 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding)made, as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelymisleading.
Appears in 2 contracts
Sources: Registration Rights Agreement (CSC Holdings Inc), Registration Rights Agreement (Cablevision Systems Corp /Ny)
Registration Procedures. (a) If Subject to the proviso of Section 2.1(d), if and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under pursuant to this Agreement, the Company shall use its reasonable best efforts to effect and facilitate the registration, offering and sale of such Registrable Securities Act in accordance with the intended method of disposition thereof as provided in Section 5.1promptly as is practicable, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC (within thirty (30) days after the date on which the Company has given Holders notice of any request for Demand Registration) a registration statement Registration Statement with respect to effect such registration Registrable Securities, make all required filings required (including FINRA filings) in connection therewith and thereafter and (if the Registration Statement is not automatically effective upon filing) use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective pursuant to the terms of this Agreementeffective; providedprovided 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 within a reasonable time before filing such registration statement a Registration Statement or any amendments or supplements thereto (including free writing prospectuses or supplements theretounder Rule 433), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in Holders’ Counsel for such registration (“Selling Shareholders”) copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents will be subject to the review and comment of such counsel, and such review other documents reasonably requested by such counsel, including any comment letter from the SEC, and give the Holders participating in such registration an opportunity to comment on such documents and keep such Holders reasonably informed as to be conducted with reasonable promptness and the registration process; provided, further, that if registration at the time would require the inclusion of pro forma financial or acquired business historical financial information, which requirement the Board determines the Company shall not file any such documents is reasonably unable to which comply with, then the Selling Shareholders (representing a majority Company may defer the filing of the Registrable Securities included in Registration Statement that is required to effect the applicable registration for a reasonable period of time to compile such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersinformation;
(iii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith any Registration Statement as may be necessary to keep such registration statement Registration Statement effective for a period of either (A) not less than ninety (90) days or, if such Registration Statement relates to an Underwritten Offering in the case of a Demand Registration, such longer period as in the opinion of counsel for the managing underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or the maximum period of time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period ending when all of the Registrable Securities covered by such Registration Statement have been disposed of (but in any event not before the expiration of any longer period required under the Securities Act) and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement, in each case in accordance with the terms of this Article VRegistration Statement;
(iiic) furnish to each Selling Shareholder Holder, Holders’ Counsel and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriters such number of conformed copies copies, without charge, of such registration statement and of any Registration Statement, each amendment and supplement thereto (in each case including all exhibits)thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus prospectus, final prospectus, all exhibits 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 other documents filed therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, Persons may reasonably request from time to time in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderHolder; provided that, before amending or supplementing any Registration Statement, the Company shall furnish to the Holders a copy of each such proposed amendment or supplement and not file any such proposed amendment or supplement to which any Selling Holder reasonably objects. The Company hereby consents to the use of such prospectus and each amendment or supplement thereto by each of the Selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such prospectus and any such amendment or supplement thereto;
(ivd) use its reasonable best efforts to register or qualify such any Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder Holder, and the managing underwriters, if any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and take do any and all other action which acts and things that may be reasonably necessary or reasonably advisable to enable such Selling Shareholder Holder and underwriter each underwriter, if any, to consummate the disposition of the seller’s Registrable Securities in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except jurisdictions; provided that the Company shall will not for any such purpose be required to (Ai) qualify generally to do business as a foreign corporation in any such jurisdiction wherein where it would not otherwise be required to qualify but for the requirements of this clause (iv) be obligated to be so qualifiedsubsection, (Bii) subject itself to taxation in any such jurisdiction where it is not then so subject or (Ciii) file a general consent to general service of process in any such jurisdictionjurisdiction where it is not then so subject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(ve) use its reasonable best efforts to cause all Registrable Securities covered by any Registration Statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable the Selling Holders to consummate the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof;
(f) during any time when a prospectus is required to be delivered under the Securities Act, promptly notify each Selling Holder and Holders’ Counsel upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made and, as promptly as practicable, prepare and furnish to such Selling Holders a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(g) promptly notify each Selling Holder and Holders’ Counsel (i) when the Registration Statement, any prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any written comments by the SEC or any request by the SEC for amendments or supplements to such Registration Statement or to amend or to supplement any prospectus contained therein or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceedings for any of such purposes, (iv) if at the time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 2.6(j) below cease to be true and correct and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed andor, if no such similar securities issued by the Company are so listedthen listed on any securities exchange, use commercially its reasonable best efforts to cause all such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Nasdaq Global Select Market;
(vii) use reasonable best efforts to cause provide a transfer agent and registrar for all such Registrable Securities covered by not later than the effective date of such registration statement to be registered Registration Statement, and, if required, obtain a CUSIP number for such Registrable Securities not later than such effective date;
(j) enter into such customary agreements (including underwriting agreements with or approved by customary provisions in such other governmental agencies or authorities forms as may be necessary to enable requested by the managing underwriters) and take all such other actions as the Selling Shareholder(s) thereof Holders or the underwriters, if any, reasonably request in order to consummate expedite or facilitate the disposition of such Registrable Securities;
(viik) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling ShareholderHolder, Holders’ Counsel, any underwriter participating in any disposition pursuant to any registration statement, the applicable Registration Statement and any attorney, accountant or other agent or representative retained by any such Selling Shareholder Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties documents relating to the business of the Company (collectivelyreasonably requested by such Selling Holder, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors directors, employees and employees independent accountants to (x) supply all information reasonably requested by any such Inspector Selling Holder, Holders’ Counsel, underwriter, attorney, accountant or agent in connection with such registration statement Registration Statement and (y) be reasonably make senior management of the Company available for customary due diligence discussions and sessions drafting activity; provided that any such Person gaining access to information or personnel pursuant to this Section 2.6(k) shall (taking into account i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business needs); providedand (ii) agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, howeverand of which determination such Person is notified, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
unless (A) the filing release of such information is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (B) the release of such information, in the opinion of such Person, is required to be released by law or applicable legal process, (C) such information is or becomes publicly known without a breach of this Agreement, (D) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (E) such information is independently developed by such Person. In the case of a proposed disclosure pursuant to (A) or (B) above, such Person shall be required to give the Company written notice of the registration statementproposed disclosure prior to such disclosure and, any amendment theretoif requested by the Company, assist the prospectus Company in seeking to prevent or any limit the proposed disclosure;
(l) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the applicable Registration Statement, which earnings statement will satisfy the provisions of Section 11(a) of the U.S. Securities Act (including, at the Company’s option, Rule 158 thereunder);
(m) in the case of an Underwritten Offering, promptly incorporate in a prospectus supplement related thereto or post-effective amendment to such information as the registration statement managing underwriters or any Free Writing Prospectus utilized Selling Holder reasonably requests to be included therein, the purchase price being paid therefor by the underwriters and any other terms of the Underwritten Offering of the Registrable Securities to be sold in connection therewithsuch offering, and, with respect to the registration statement and promptly make all required filings of such prospectus supplement or any post-effective amendment thereto, when the same has become effectiveamendment;
(Bn) any request by in the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) event of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement a Registration Statement, or the initiation of any proceedings by order suspending or preventing the use of any Person related prospectus or ceasing trading of any securities included in such Registration Statement for that purpose; andsale in any jurisdiction, use every reasonable effort to promptly obtain the withdrawal of such order;
(Do) make senior management of the receipt Company available to assist to the extent reasonably requested by the Company managing underwriters of any notification Underwritten Offering to be made pursuant to such registration in the marketing of the Registrable Securities to be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the Underwritten Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Stock;
(p) use reasonable best efforts to: (a) obtain all consents of independent public accountants required to be included in the Registration Statement and (b) in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the underwriters and to the Selling Holders, dated the date of the underwriting agreement for such offering and the date of each closing under the underwriting agreement for such offering, signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters as the underwriters or Genworth, if any member of the Genworth Affiliated Group is a Selling Holder in such offering, or otherwise by the Holders of a majority of the Registrable Securities being sold in such offering, as applicable, reasonably request;
(q) use reasonable best efforts to obtain: (a) all legal opinions from Company Outside Counsel (or internal counsel) required to be included in the Registration Statement and (b) in connection with each closing of a sale of Registrable Securities, legal opinions from Company Outside Counsel (or internal counsel if acceptable to the managing underwriters), addressed to the underwriters, dated as of the date of such closing, with respect to the suspension Registration Statement, each amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the qualification type customarily covered by legal opinions 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 purposenature;
(xr) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening occurrence of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Shareholdercontemplated by Section 2.6(f) above, promptly 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 the light of the circumstances under which they were made, not misleading;
(xis) use reasonable best efforts to prevent, reasonably cooperate with each seller of Registrable Securities and obtain each underwriter or agent participating in the withdrawal of, any order suspending the effectiveness disposition of such registration statementRegistrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(xiit) otherwise use reasonable best efforts take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided that, to comply with all the extent that any prohibition is applicable rules and regulations of to the SECCompany, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of will take all reasonable action to make such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;prohibition inapplicable; and
(xiiiu) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoingactions, and take do and cause to be done all reasonable action other things necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time reasonably advisable in the event that any applicable law adversely affects opinion of Holders’ Counsel to effect the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer registration, marketing and sale of such Class P Shares (Registrable Securities. The Company agrees not to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take file or make any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyam
Appears in 2 contracts
Sources: Registration Rights Agreement (Genworth Mortgage Holdings, Inc.), Registration Rights Agreement (Genworth Mortgage Holdings, Inc.)
Registration Procedures. (a) If and whenever Whenever any Holder or Holders request that any Registrable Securities be registered pursuant to this Section 5, the Company is required to will use its reasonable best efforts to effect the registration of any the sale of such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided quickly as practicable, and in Section 5.1connection with any such request:
(a) The Company will, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(i) , but in any event within 90 days after the request, prepare and file with the SEC Commission a registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use its reasonable best efforts to cause such filed registration statement to become and remain effective pursuant to for a period of not less than 180 days or until all of such Registrable Securities have been disposed of (if earlier) (such period, the terms of this Agreement"Registration Period"); provided, however, that, if the Holders specify that such registration shall be a Shelf Registration, the Company may discontinue any registration shall use its reasonable best efforts to effect such Shelf Registration; provided further, that, in the case of its securities which are not Registrable Securities at any time prior a Piggy-Back Registration, if the Company shall furnish to the effective date of Holders a certificate signed by its chief executive officer stating that in such officer's good faith judgment it would be significantly disadvantageous to the Company or its shareholders for such a registration statement relating thereto; providedto be filed as expeditiously as possible, further that the Company shall have a period of not more than 60 days within a reasonable time before filing which to file such registration statement measured from the date of receipt of the request in accordance with Section 5.02 hereof.
(b) The Company will, if requested, prior to filing a registration statement or prospectus or any amendments thereto (including prospectuses amendment or supplements supplement thereto), the Company will furnish to the counsel selected by the Shareholders which are including Holders requesting registration of Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold Registrable Securities covered by such Selling Shareholder such number of conformed registration statement copies of such registration statement as proposed to be filed, and thereafter furnish to the Holders requesting registration of Registrable Securities and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibitsexhibits thereto and documents incorporated by reference therein), such number of copies of the prospectus contained included in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, the Holders requesting registration of Registrable Securities or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;Holders.
(ivc) After the filing of the registration statement, the Company will promptly notify the Holders of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its reasonable best efforts to (i) register or qualify such the Registrable Securities covered by such registration statement under such other securities laws or blue blue-sky laws of such jurisdictions in the United States as any Selling Shareholder the Holders requesting registration of Registrable Securities reasonably (in light of such Holders' intended plan of distribution) request and any underwriter (ii) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the securities being sold by such Selling Shareholder shall reasonably request, business and take operations of the Company and do any and all other action which acts and things that may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderthe Holders; provided, except however, 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 paragraph (iv) be obligated to be so qualifiedd), (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;.
(ve) The Company will immediately notify the Holders, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly make available to the Holders any such supplement or amendment.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities.
(g) The Company will make available for inspection by the Initial Holder requesting registration of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by such Initial Holder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Company determines, in good faith, 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 is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. In the event that an Inspector or any of its representatives is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, or similar process) to disclose any of the confidential information contained in the Records, it is agreed that such Inspector or its representative, as the case may be, will provide the Company with prompt notice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive such Inspector's or its representative's compliance with this provision. In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder, such inspector or its representative may furnish that portion of the Records which it is legally compelled to disclose. Each Holder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such information is made generally available to the public.
(h) The Company will furnish to each underwriter, if any, a signed counterpart, addressed to such underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter therefor reasonably requests.
(i) The Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to the Holders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(j) The Company will (at its own expense) use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed 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 reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, the Holders requesting registration of Registrable Securities to promptly furnish in writing to the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete or amend the and such other information as may be legally 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters in connection with such offering containing representationsregistration. The Holders agree that, 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 such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x)5.04(e) hereof, such Selling Shareholder shall the Holders will forthwith discontinue such Selling Shareholder’s disposition of any Registrable Securities registered pursuant to this Section 5 pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s the Holders' receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x5.04(e) hereof, and, if so directed by the Company, the Holders will deliver to the Company, at the Company’s expense, Company all copies, other than permanent file copies, copies then in such Selling Shareholder’s possession Holders' possession, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the Registration Period) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x5.04(e) hereof to the date when all such Selling Shareholders the Company shall receive such make available to the Holder a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationSection 5.04(e) hereof.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Warrant Agreement (Angeion Corp/Mn), Warrant Agreement (Angeion Corp/Mn)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 2.1 and 2.2 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall as promptly as practicable furnish such documents to Penske and remain effective pursuant each underwriter, if any, participating in the offering of the Registrable Securities and their respective counsel, which documents will be subject to the terms reasonable review and comments of this AgreementPenske, each underwriter and their respective counsel; and provided, further, however, that the Company may discontinue any registration of its securities pursuant to Section 2.2 or which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) notify Penske of the Commission's requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the terms intended method of this Article Vdistribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 180 days;
(iiic) furnish furnish, without charge, to each Selling Shareholder Penske and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as Penske and such Selling Shareholder and underwriter, if any, underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use its reasonable best efforts (i) 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 Shareholder and any underwriter States of the securities being sold by such Selling Shareholder United States of America where an exemption is not available and as Penske or any managing underwriter shall reasonably request, (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 may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter Penske to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling ShareholderPenske, 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 subsection (ivd) be obligated to be so qualified, (B) subject itself qualified or to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(ve) use reasonable best efforts furnish to cause such Registrable Securities to be listed on Penske and each securities exchange on which similar securities issued by the Company are then listed andunderwriter, if no such any, participating in the offering of the 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 reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition statement, a signed counterpart of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(Bii) a “"comfort” " letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s 's or any other entity's financial statements included or incorporated by reference 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' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the legal opinion, such other legal matters, and, in the case of the accountants' comfort letter, such other financial matters, as the underwriters, may reasonably request;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixf) promptly notify in writing Penske and each Selling Shareholder and the underwritersmanaging underwriter, if any, participating in the offering of the following events:
securities covered by such registration statement (Ai) the filing of the when such registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the such registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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 any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, andin the light of the circumstances under which they were made, and in the case of this clause (v), at the request of any Selling Shareholder, Penske promptly prepare and furnish to such seller Penske and each managing underwriter, if any, participating in the offering of the Registrable Securities, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such 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; and (vi) at any time when the representations and warranties of the Company contemplated by Section 2.4(a) or (b) hereof cease to be true and correct;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiig) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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 promulgated thereunder, and promptly furnish to Penske a copy of any amendment or supplement to such registration statement or prospectus;
(xiiih) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration;
(i) (i) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of cause all Registrable Securities covered by such registration statement a supply 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 certificates; and
Registrable Securities is then permitted under the rules of such exchange, or (xvii) in the case of an Underwritten Offeringif no similar securities are then so listed, cause the appropriate officers of the Company to use its reasonable best efforts to facilitate (x) cause all offeringssuch Registrable Securities to be listed on a national securities exchange or (y) failing that, including secure designation of all such Registrable Securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or (z) failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to preparing marketing and offering materialssuch shares with the National Association of Securities Dealers, preparing, making presentations at, and otherwise participating in any “road shows” Inc.;
(domestic and foreignj) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts deliver promptly to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected counsel to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder Penske and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors;
(k) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement;
(l) provide a CUSIP number for all Registrable Securities, no later than the effective date of the registration statement; and
(m) make available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company's business) in their marketing of Registrable Securities. The Company may require Penske to furnish the Company in writing such information regarding each Selling Shareholder or underwriter Penske and the distribution of such the Registrable Securities as the Company may from time to time reasonably request in writing. The Company shall be released from any obligation to complete or amend Penske hereunder for so long as Penske has not delivered such information to the information extent required by such registration statement.
(b) Without limiting any for purposes of the foregoing, in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder registrations. Penske agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(xparagraph (f) (iii), such Selling Shareholder shall forthwith (iv) or (v) of this Section 2.3, Penske will, to the extent appropriate, discontinue such Selling Shareholder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until to such Selling Shareholder’s Registrable Securities until, in the case of paragraph (f)(v) of this Section 2.3, its receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (f)(v) of this Section 5.6(a)(x) 2.3 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 Shareholder’s possession its possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice relating notice. If the disposition by Penske of its securities is discontinued pursuant to such Registrable Securities. In the event foregoing sentence, the Company shall give such notice, any applicable one hundred twenty (120) day extend the period during which such of effectiveness of the registration statement must remain effective required pursuant to this Agreement shall be extended Section 2.1(e) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all such Selling Shareholders Penske shall receive such a have received copies of the supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
contemplated by paragraph (df)(v) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirementsthis Section 2.3; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action so extend such period, Penske's request pursuant to this Section 5.6(e) that would result in the failure following which such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, registration statement was filed shall not be counted for purposes of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyrequests for registration to which Penske is entitled pursuant to Section 2.1 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (United Auto Group Inc), Registration Rights Agreement (Penske Capital Partners LLC)
Registration Procedures. The following provisions shall apply to the filing of the Shelf Registration Statement:
(a) If and whenever the The Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleshall:
(i) prepare and file with the SEC Commission within the time periods specified in Section 2(a), a registration statement Shelf Registration Statement on any form which may be utilized by the Company and which shall register all of the Registrable Securities for resale by the holders thereof in accordance with such method or methods of disposition (but which shall not include an underwritten offering as to effect which the Company needs to assist) as may be specified by such registration of the holders as, from time to time, may be Electing Holders and thereafter use reasonable best efforts to cause such registration statement Shelf Registration Statement to become effective as soon as reasonably practicable but in any case within the time periods specified in Section 2(a);
(ii) not more than 5 Business Days after the consummation of the Merger, mail the Notice and remain effective pursuant Questionnaire to the terms holders of this AgreementRegistrable 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, that the Company may discontinue any registration holders of its securities which are not Registrable Securities shall have at any time prior least 20 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 effective date Company;
(iii) after the Effective Time of the registration statement relating thereto; providedShelf Registration Statement, further upon the request of any holder of Registrable Securities that within is not then an Electing Holder, send a Notice and Questionnaire to such holder, and, upon return of such Notice and Questionnaire from such Holder, use reasonable time before filing best efforts to include such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including holder’s Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment Shelf Registration Statement as soon as practicable but in any event within five days following receipt by the Company of such counsel, Notice and such review and comment to be conducted with reasonable promptness and Questionnaire; provided that the Company shall not file be required to take any action to name such documents holder as a selling securityholder in the Shelf Registration Statement or to which enable such holder to use the Selling Shareholders (representing prospectus forming a majority part thereof for resales of the Registrable Securities included in until such registration) object, in writing, on holder has returned a timely basis, based on any disclosure included therein that relates completed and signed Notice and Questionnaire to such Selling Shareholdersthe Company;
(iiiv) as soon as reasonably practicable prepare and file with the SEC Commission such amendments and supplements to such registration statement Shelf Registration Statement (including without limitation, any required post effective amendments) and the prospectus used in connection therewith included therein as may be necessary to keep effect and maintain the effectiveness of such registration statement effective Shelf Registration Statement for the period specified in Section 2(a) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, including without limitation, to promptly include any Electing Holder to be named as a selling security holder therein;
(v) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws Shelf Registration Statement in accordance with the intended methods of such jurisdictions as any Selling Shareholder and any underwriter of disposition by the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition Electing Holders provided for in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock MarketShelf Registration Statement;
(vi) use reasonable best efforts provide (A) one representative of the Electing Holders and (B) not more than one counsel (“Legal Counsel”) for all the Electing Holders the opportunity 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 participate in the Selling Shareholder(s) thereof to consummate the disposition preparation of such Registrable SecuritiesShelf Registration Statement, each prospectus included therein or filed with the Commission and each amendment or supplement thereto (but not including any documents incorporated by reference), in each case subject to customary confidentiality restrictions. The Company shall (A) permit Legal Counsel to review and comment upon (i) a Shelf Registration Statement at least five (5) Business Days prior to its filing with the Commission and (ii) all amendments and supplements to all Shelf Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any similar or successor reports) within a reasonable number of days prior to their filing with the Commission, and (B) give due consideration to any comments Legal Counsel provides with respect to any Shelf Registration Statement or amendment or supplement thereto. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the Commission or the staff of the Commission to the Company or its representatives relating to any Shelf Registration Statement, (ii) promptly after the same is prepared and filed with the Commission, one copy of any Shelf Registration Statement and any amendment(s) thereto, including financial statements and schedules, and, if requested by a holder and unavailable on ▇▇▇▇▇, all documents incorporated therein by reference and all exhibits to such Shelf Registration Statement and (iii) upon the effectiveness of any Shelf Registration Statement, one copy of the prospectus included in such Shelf Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company’s obligations pursuant to this Section 3(vi);
(vii) for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in connection with an Underwritten OfferingSection 2(a), obtain make available between 9 a.m. and 5 p.m. on any Business Day at the Company’s principal place of business or such other reasonable place for inspection by the persons referred to in Section 3(a)(vi) who shall certify to the Company that they have a current intention to sell the Registrable Securities pursuant to the Shelf Registration 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 be available 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 Selling Shareholder such party shall be required to maintain in confidence and underwriter:
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 other than through a breach of this provision by such person or by an opinion Electing Holder (but excluding by virtue of counsel for its inclusion in such registration statement or otherwise by the Company), 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 (provided such person agrees that it will give prompt notice to the Company and allow the Company, covering at its expense, to promptly undertake appropriate action and to prevent disclosure of such information deemed confidential), or (C) such information is required to be set forth in such Shelf Registration Statement or the matters customarily covered prospectus included therein or in opinions requested an amendment to such Shelf Registration Statement or an amendment or supplement to such prospectus in underwritten offerings and order that such other matters Shelf Registration Statement, prospectus, amendment or supplement, as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case may be, complies with applicable requirements of any such Person which the federal securities laws and the rules and regulations of the Commission and does not satisfy the conditions for receipt contain an untrue statement of a “comfort” letter specified 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 Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by light of the independent public accountants who have certified the Company’s financial statements included in such registration statementcircumstances then existing;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statementnotify each of the Electing Holders, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information if requested by any such Inspector Electing Holder, confirm such advice in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); providedwriting, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the registration statement such Shelf Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (B) of any comments by the Commission and by the blue sky or securities commissioner or regulator of any state with respect thereto or any request by the SEC or any other Government Entity Commission for amendments or supplements to the registration statement such Shelf Registration Statement or the prospectus or for additional information;
, (C) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the registration statement such Shelf Registration Statement or the initiation or threatening of any proceedings by any Person for that purpose; and
, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any 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;
, or (xE) notify in writing each Selling Shareholder, if at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery thatthat such Shelf 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 misleading, and, at misleading in light of the request of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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 misleadingcircumstances then existing;
(xiix) use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of such registration statementstatement or any post-effective amendment thereto at the earliest practicable date;
(x) if requested by any Electing Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission and as such Electing Holder specifies should be included therein relating to the terms of the sale of such Registrable Securities, including information with respect to the amount of Registrable Securities being sold by such Electing Holder, the name and description of such Electing Holder the offering price of such Registrable Securities and any compensation payable in respect thereof, 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; provided, however, that any suspension of the Shelf Registration Statement caused by the Company filing a post-effective amendment to incorporate information pursuant to this Section 3(a)(x) shall not be deemed a Failure under this Agreement;
(xi) if requested by any Electing Holder, furnish to such Electing Holder and the respective counsel referred to in Section 3(a)(vi) a conformed copy of such Shelf Registration Statement, each such amendment and supplement thereto (in each case, if so requested, including all exhibits thereto and documents incorporated by reference therein) and such number of copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such Electing Holder) and of the prospectus included in such Shelf Registration Statement, in conformity in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder, and such other documents, as such Electing Holder may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by such Electing Holder and to permit such Electing Holder to satisfy the prospectus delivery requirements of the Securities Act; and subject to Section 3(b) below, the Company hereby consents to the use of such prospectus and any amendment or supplement thereto by each such Electing Holder, 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 Securities covered by the prospectus or any supplement or amendment thereto;
(xii) (A) register or qualify the Registrable Securities to be included in such Shelf Registration Statement under such securities laws or blue sky laws of all applicable jurisdictions in the United States, (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 is required to remain effective under Section 2(a) above and for so long as may be necessary to enable any such Electing Holder to complete its distribution of Securities pursuant to such Shelf Registration Statement and (C) take any and all other actions as may be reasonably necessary to enable each such Electing Holder to consummate the disposition in such jurisdictions of such Registrable Securities; 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 use reasonable best efforts be required to qualify but for the requirements of this Section 3(a)(xii), (2) consent to general service of process in any such jurisdiction or become subject to taxation in any such jurisdiction or (3) make any changes to its articles of incorporation or by-laws or other governing documents or any agreement between it and its stockholders;
(xiii) unless any Registrable Securities shall be in book-entry only form, reasonably cooperate with the Electing Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates, if so required by any securities exchange upon which any Registrable Securities are listed, shall be penned, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders, and which certificates shall not bear any restrictive legends;
(xiv) comply with all applicable rules and regulations of the SECCommission, and make generally available to Selling Shareholders, its securityholders as soon as reasonably practicablepracticable but in any event not later than ninety (90) days after the close of the period covered thereby, if requested, an earnings earning statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning and its subsidiaries complying 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 (including, at the option of the Company, Rule 158 thereunder);
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause event that Form S-3 is not available for the appropriate officers registration of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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 resale of Registrable Securities is to be made by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoinghereunder, the Company shall comply with all (i) register the resale of the Registrable Securities on another appropriate form reasonably acceptable to the Required Holders and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Shelf Registration Statement then in effect until such time as a Shelf Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(xvi) if any holder is required under applicable securities laws to be described in the Shelf Registration Statement as an underwriter or other laws in connection with the foregoinga holder believes that it could reasonably be deemed to be an underwriter of Registrable Securities, and take all reasonable action necessary or appropriate to restructure the Shares at the reasonable request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such eventholder, the Company shall not be required furnish to take such holder, on such date as a holder may reasonably request (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the holders, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Shelf Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the holders; provided, however, that the holder shall pay all fees and expenses relating to any action letter or opinion requested by such holder pursuant to this Section 5.6(e3(a)(xvi).
(xvii) that would result if any holder is required under applicable securities laws to be described in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyShelf Registr
Appears in 2 contracts
Sources: Registration Rights Agreement (Gsi Group Inc), Registration Rights Agreement (Gsi Group Inc)
Registration Procedures. (a) If and whenever Whenever Standby Purchasers request that any Registrable Securities be registered pursuant to Section 2.01 or 2.02, subject to the provisions of such Sections, the Company is required to shall use its commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided quickly as practicable, and, in Section 5.1, Section 5.2 and Section 5.3 the connection with any such request:
(a) The Company shall as expeditiously as reasonably possible:
(i) possible prepare and file with the SEC a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use reasonable its reasonably best efforts to cause such filed registration statement to become and remain effective pursuant continuously for a period of not less than 180 days, or in the case of a shelf registration statement, two years (or such shorter period in which all of the Registrable Securities of the Registering Stockholders included in such registration statement shall have actually been sold thereunder).
(b) Within a reasonable time in the circumstances prior to filing a registration statement or prospectus or any amendment or supplement thereto, the terms Company shall, if requested, furnish to each participating Standby Purchaser and each underwriter, if any, of this Agreement; the Registrable Securities covered by such registration statement copies of such registration statement as proposed to be filed, and thereafter the Company shall furnish to such Standby Purchaser and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as such Standby Purchaser or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Standby Purchaser. Each Standby Purchaser shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Standby Purchaser and the Company shall use its commercially reasonably efforts to comply with such request, provided, however, that the Company may discontinue shall not have any registration obligation so to modify any information if the Company reasonably expects that so doing would cause the prospectus to contain an untrue statement of its securities which are a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not Registrable Securities at any time prior to misleading.
(c) After the effective date filing of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto)statement, the Company will furnish to shall (i) cause the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed statement to be filedamended by any required amendment (including for the purpose of adding a Standby Purchaser as a selling securityholder in accordance with the terms of this Agreement), which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file cause the related prospectus to be supplemented by any required prospectus supplement (including for the purpose of adding a Standby Purchaser as a selling securityholder in accordance with the SEC such amendments and supplements terms of this Agreement), and, as so supplemented, to such registration statement and be filed pursuant to Rule 424 under the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to Securities Act, (iii) comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement, in each case statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained Registering Stockholders thereof set forth in such registration statement (including each preliminary or supplement to such prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) promptly notify each Registering Stockholder holding Registrable Securities covered by such registration statement of any stop order issued or threatened by the SEC or any state securities commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its commercially reasonable best efforts to (i) 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 in the United States as any Selling Shareholder and any underwriter of the securities being sold by Registering Stockholder holding such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by reasonably (in light of such Selling Shareholder, except that the Company shall not for any such purpose be required to Registering Stockholder’s intended plan of distribution) requests and (Aii) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Selling Shareholder(s) thereof such Registering Stockholder to consummate the disposition of the Registrable Securities owned by such Registering Stockholder, provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.04(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(e) The Company shall promptly notify each Registering Stockholder holding such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities;, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Registering Stockholder and file with the SEC any such supplement or amendment.
(viii) The Requesting Stockholders shall have the right to select an underwriter or underwriters in connection with an Underwritten Offeringany Public Offering resulting from the exercise by such Requesting Stockholder of a Demand Registration, obtain for each Selling Shareholder and underwriter:
(A) an opinion which selection shall be subject to the approval of counsel for the Company, covering which approval shall be reasonably given, and (ii) the matters customarily covered Company shall select an underwriter or underwriters in opinions requested connection with any other Public Offering. In connection with any Public Offering, the Company shall enter into customary agreements (including an underwriting agreement in underwritten offerings customary form) and take all such other matters actions as may be are reasonably requested by required in order to expedite or facilitate the disposition of such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, Registrable Securities in the case of any such Person which does not satisfy Public Offering, including the conditions for receipt engagement of a “comfortqualified independent underwriter” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letterconnection with the qualification of the underwriting arrangements with the NASD.
(g) signed by the independent public accountants who have certified Upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company’s financial statements included in such registration statement;
(viii) promptly , the Company shall make available for inspection by any Selling Shareholder, Registering Stockholder and any underwriter participating in any disposition pursuant to any a registration statement, statement being filed by the Company pursuant to this Agreement and any attorney, accountant or other agent or representative professional retained by any such Selling Shareholder 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 or desirable to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information reasonably requested by any such Inspector Inspectors in connection with such registration statement statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (yi) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Registering Stockholder agrees that information obtained by it as a result of such inspections shall be subject deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Company Securities unless and until such information is made generally available to the execution by public. Each Registering Stockholder further agrees that, upon learning that disclosure of such Selling Shareholder or other Inspector of a customary confidentiality agreement Records is sought in a form which is reasonably satisfactory court of competent jurisdiction, it shall give notice to the Company and allow the Company;, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(ixh) promptly notify in writing The Company shall furnish to each Selling Shareholder Registering Stockholder and the underwritersto each such underwriter, if any, a signed counterpart, addressed to such Registering Stockholder or underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the following events:kind customarily covered by opinions or comfort letters, as the case may be, as a majority of such Registering Stockholders or the managing underwriter therefor reasonably requests.
(Ai) the filing of the registration statement, If a Demand Registration involves a Public Offering (including any amendment theretoShelf Registration used to effect a Public Offering), the prospectus or any prospectus supplement related thereto or post-effective amendment price at which shares shall be sold in the Public Offering shall be determined in consultation with the underwriters by a committee consisting of one representative of each participating Standby Purchaser that is registering for sale an amount of shares equal to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity lesser of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 5% of the outstanding Common Stock and (ii) at any time when a prospectus relating thereto is required least 25% of the total number of shares to be delivered under sold in 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;offering.
(xij) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) The Company shall otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company or such other document covering the a period of at least twelve (12) months, but not more than eighteen (18) 12 months, beginning with the first day of the Company’s first full quarter within three months 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;.
(xiiik) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, Registering Stockholder promptly to furnish in writing to the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete or amend the and such other information as may be legally 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, 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 contained herein) by an issuer of common stock in such underwriting agreementsregistration.
(cl) Each Selling Shareholder Registering Stockholder agrees that that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x2.04(e), such Selling Shareholder Registering Stockholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling ShareholderRegistering Stockholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 2.04(e), and, if so directed by the Company, such Registering Stockholder shall deliver to the Company, at the Company’s expense, Company all copies, other than any permanent file copies, copies then in such Selling ShareholderRegistering Stockholder’s possession possession, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 2.04(a)) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x2.04(e) to the date when all the Company shall make available to such Selling Shareholders shall receive such Registering Stockholder a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 2.04(e).
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(em) The Company shall have appropriate officers of the Company (i) prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other actions to obtain ratings for any Registrable Securities and (iii) otherwise use its their commercially reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), cooperate as contemplated reasonably requested by the Charterunderwriters in the offering, and shall not take marketing or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality selling of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyRegistrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Safety-Kleen, Inc), Registration Rights Agreement (Safety-Kleen, Inc)
Registration Procedures. (a) If and whenever Whenever the Holders have requested that any Registrable Securities be registered pursuant to Section 2 hereof, the Company is required to will, at its expense, use commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under the Securities Act as provided in Section 5.1accordance with the intended method of disposition thereof prior to the Required Filing Date, Section 5.2 and Section 5.3 in connection with any such request, the Company shall will as expeditiously as reasonably possiblepracticable:
(ia) prepare and file with the SEC a registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use commercially reasonable best efforts and proceed diligently and in good faith to cause such filed registration statement to become and remain effective pursuant to under the terms of this AgreementSecurities Act; provided, however, PROVIDED that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to all Selling Holders and to one counsel reasonably acceptable to the counsel Company selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) Holders, copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel; PROVIDED FURTHER that in connection with a Demand Registration, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which registration statement or prospectus, or any amendments or supplements thereto, if the Selling Shareholders (representing Requesting Holders who hold a majority of the Registrable Securities included in covered by such registration) object, in writing, registration statement or their counsel shall reasonably object on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to Section 2 for a period (except as provided in the last paragraph of this Section 5) of not less than 180 consecutive days or, if shorter, the period terminating when all Registrable Securities covered by such registration statement have been sold (but not before the expiration of the applicable period referred to in Section 4(3) of the Securities Act and to Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended method of this Article Vdisposition by the Selling Holders thereof set forth in such registration statement;
(iiic) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder Holder such number of conformed copies of such registration statement and of statement, each amendment and supplement thereto (in each case including all exhibitsexhibits thereto), such number of copies of the prospectus contained included in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, Holder may reasonably request request, including, but not limited to, the matters set forth in Sections 5(a)(i), (ii), (iii) and (v), in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderHolder;
(d) notify the Selling Holders promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a registration statement or any post-effective amendment, when the same has become effective under the Securities Act and each applicable state Law, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a registration statement or related prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a registration statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations or warranties of the Company or any Subsidiary contained in any agreement (including any underwriting agreement) contemplated by Section 5(i) below cease to be true and correct in any material respect, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (vi) of the happening of any event which makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, prospectus or documents so that, in the case of the registration statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vii) of the Company's reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(e) use commercially reasonable best efforts to 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 moment;
(f) cooperate with the Selling Holders and the managing Underwriter or Underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depositary Trust Company;
(g) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement as promptly as practicable under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter Holder or managing Underwriter reasonably (in light of the securities being sold by such Selling Shareholder shall reasonably request, intended plan of distribution) requests and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter Holder or managing Underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except Holder; PROVIDED that the Company shall will not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualifiedg), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) file a general consent to general service of process in any such jurisdiction;
(vh) use commercially reasonable best efforts to cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities, if any, as may be required of the Company to enable the Selling Holder or Selling Holders thereof to consummate the disposition of such Registrable Securities;
(i) enter into customary agreements (including an underwriting agreement in customary form with customary indemnification provisions) and take such other actions as are reasonably required or advisable in order to expedite or facilitate the disposition of such Registrable Securities, including providing reasonable availability of appropriate members of senior management of the Company to provide customary due diligence assistance in connection with any offering and to participate in customary "road show" presentations in connection with any underwritten offerings in substantially the same manner as they would in an underwritten primary registered public offering by the Company of its Common Stock, after taking into account the reasonable business requirements of the Company in determining the scheduling and duration of any road show;
(j) make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "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 reasonably requested by any such Inspectors in connection with such registration statement. Each Selling Holder of such Registrable Securities agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the public (other than by such Selling Holder). Each Selling Holder of such Registrable Securities further agrees that it will, as soon as practicable upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company at its expense to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(k) use commercially reasonable efforts to obtain a comfort letter or comfort letters from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters as the Selling Holders of a majority of the shares of Registrable Securities being sold or the managing Underwriter or Underwriters reasonably requests;
(l) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of twelve months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act;
(m) use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such or quoted on any inter-dealer quotation system on which similar securities issued by the Company 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 Marketthen quoted;
(vin) use reasonable best efforts to cause such Registrable Securities covered if any event contemplated by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(sSection 5(d)(vi) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”)above shall occur, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder promptly as practicable prepare a supplement or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the such registration statement or the related prospectus or for additional information;
(C) the issuance any document incorporated therein by the SEC reference or promptly file any other Government Entity of any stop order suspending required document so that, as thereafter delivered to the effectiveness purchasers of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 whichSecurities, the prospectus included in such registration statement, as then in effect, includes will not contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xvo) cooperate and assist in any filing required to be made with the National Association of Securities Dealers, Inc. and in the case performance of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offeringsany due diligence investigation by any underwriter, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the "qualified independent underwriter," or any Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the CompanyHolder. The Company may require each Selling Shareholder and each underwriter, if any, Holder to promptly furnish in writing to the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company it may from time to time reasonably request to complete or amend the and such other information as may be legally 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters in connection with such registration. Notwithstanding anything herein to the contrary, the Company shall have the right to exclude from any offering containing representations, warranties, indemnities and agreements customarily included (but the Registrable Securities of any Selling Holder who does not inconsistent comply with the covenants and agreements provisions of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) immediately preceding sentence. Each Selling Shareholder 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 5.6(a)(x)5(d)(vi) hereof, such Selling Shareholder shall Holder will forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x5(d)(vi) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company, at the Company’s expense, Company all copies, other than permanent file copies, then in such Selling Shareholder’s possession Holder's possession, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 5(b) hereof) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x5(d)(vi) hereof to the date when all the Company shall make available to the Selling Holders of Registrable Securities covered by such Selling Shareholders shall receive such registration statement a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationSection 5(d)(vi) hereof.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Stockholders Agreement (Christina Bank & Trust Co), Stockholders Agreement (TNPC Inc)
Registration Procedures. (a) If and whenever Whenever the Company is required to use reasonable best efforts to effect the registration holders of Registrable Securities have requested that any Registrable Securities under the Securities Act as provided in Section 5.1be registered pursuant to this Restated Agreement, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a registration statement Registration Statement with respect to effect such registration Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective pursuant for a period which will terminate when all Registrable Securities covered by such Registration Statement, as amended from time to time, have been sold or a period of 180 days, whichever is shorter;
(b) prepare and file with the SEC such amendments and post-effective amendments to the terms Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective for the period specified in Section 6(a) and to comply with the provisions of this Agreementthe 1933 Act and the 1934 Act with respect to the distribution of all Registrable Securities; providedprovided that, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any a time reasonably prior to the effective date filing of the registration statement relating thereto; provideda Registration Statement or Prospectus, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to counsel for the counsel selected by the Shareholders which are including Holders of Registrable Securities included in such registration (“Selling Shareholders”) registration, copies of all such documents proposed to be filed, which documents will be subject to the review and comment comments of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iic) 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 securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholdera representative of the Holders of Registrable Securities, any underwriter participating in any disposition distribution pursuant to any registration statementsuch registration, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder representative 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 's officers, directors and employees to (x) supply all information reasonably requested by any such Inspector representative, underwriter, attorney, accountant or agent in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Companystatement;
(ixd) promptly notify the counsel for the Holders of Registrable Securities included in writing each Selling Shareholder and the underwriterssuch registration promptly, and, if anyrequested, of confirm such advice in writing, (i) when the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus Prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, and with respect to the registration statement Registration Statement or any post-effective amendment theretoamendment, when the same has become effective;
, (Bii) of any request by the SEC or any other Government Entity for amendments or supplements to the registration statement Registration Statement or the prospectus Prospectus or for additional information;
, (Ciii) of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement Registration Statement or the initiation of any proceedings by any Person for that purpose; and
, and (Div) of the receipt by the Company of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(e) make reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement;
(f) deliver to each Holder of Registrable Securities included in such registration, as the case may be, as many copies of the Registration Statement and Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such holder may reasonably request;
(g) prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the holders of Registrable Securities and the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as such Holder or any underwriter reasonably requests in writing, and do any and all other acts or things necessary or advisable to enable the distribution in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or the initiation or threat to take any action which would subject it to general service of process in any proceeding for such purposejurisdiction where it is not then so subject;
(xh) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed; and provide a transfer agent and registrar for all Registrable Securities included in such Registration Statement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(i) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, usual and customary in form, with the managing underwriter of such offering (the Holders of Registrable Securities included in such registration, shall also enter into and perform their obligations under such agreement, usual and customary in form); and the Company shall take such other actions as the underwriters reasonably request in order to expedite or facilitate a disposition of the Registrable Securities;
(j) upon request, furnish to each Holder of Registrable Securities included in such registration, a signed counterpart, addressed to such Holder, of (i) an opinion of counsel for the Company, dated the effective date of such Registration Statement (or, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), and (ii) if permitted, 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 public accountants who have certified the Company's financial statements included in such Registration Statement;
(k) immediately notify each Holder of Registrable Securities included in writing each Selling Shareholdersuch registration, at any time when a prospectus 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 Prospectus included in such registration statementRegistration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of any Selling Shareholdersuch Holder, promptly prepare and 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 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiil) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SECSEC under the 1933 Act and the 1934 Act, and make available take such other actions as may be reasonably necessary to Selling Shareholders, as soon as reasonably practicable, an earnings statement facilitate the registration or the disposition of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Registrable Securities Act and Rule 158 thereunderhereunder;
(xiiim) use its reasonable best efforts to assist Selling Shareholders who made a request to In connection with each registration hereunder, the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery Holders of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) included in the case of an Underwritten Offering, cause the appropriate officers of the Company registration will furnish to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter with respect to themselves and the proposed distribution of such Registrable Securities by them as reasonably shall be necessary in order to assure compliance with federal and applicable state securities laws. In addition, 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 be made by or through an underwriter, the Company, 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 agree that they will not inconsistent with the covenants and agreements deliver any form of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request Prospectus in connection with the sale of any Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts as to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, which the Company shall comply with all applicable securities has advised such Holders that it is preparing an amendment or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelysupplement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Freemarkets Inc), Registration Rights Agreement (Freemarkets Inc)
Registration Procedures. (a) If and whenever the Company is Whenever required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1hereunder, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possible:
(i) , prepare and file with the SEC Commission a registration statement with respect to effect such registration Registrable Securities and thereafter use all reasonable best efforts to cause such registration statement to become and remain effective pursuant effective. The Company also shall keep each Holder advised in writing as to the terms initiation of this Agreement; providedeach registration and as to the completion thereof, howeverand at its expense, that use its commercially reasonable efforts to:
(a) Keep such registration effective for a period ending on the Company may discontinue any registration earlier of its securities the date which are not Registrable Securities at any time prior to is sixty (60) days from the effective date of the registration statement or such time as the Holder or Holders have completed the distribution described in the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) prepare Prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, statement for the period set forth in each case in accordance with the terms of this Article Vsubsection (a) above;
(iiic) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder Furnish such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case prospectuses, including all exhibits), such number of copies of the prospectus contained in such registration statement (including each any 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 Actprospectuses, and such other documents incident thereto, including any amendment of or supplement to the prospectus, as such Selling Shareholder and underwriter, if any, a Holder from time to time may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use Use 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 jurisdiction as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate requested by the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderHolders; provided, except that the Company shall not for any such purpose be required in connection therewith or as a condition thereto 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 or to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionstates or jurisdictions;
(ve) use reasonable best efforts to cause Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed 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 reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(Df) the receipt by the Company of In connection with any notification with respect underwritten offering pursuant to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering filed pursuant to the Shelf Registration Statement))Section 2.1 hereof, the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, if requested by the underwriter, shall enter into an underwriting agreement with in a managing underwriter or underwriters in connection with form reasonably necessary to effect the offer and sale of Common Stock, provided such offering containing representationsunderwriting agreement contains reasonable and customary provisions, warrantiesand provided further, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock that each Holder participating in such underwriting agreementsshall also enter into and perform its obligations under such an agreement.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Achaogen Inc), Investors’ Rights Agreement (Achaogen Inc)
Registration Procedures. (a) If and whenever the Company is required to The Parent will use reasonable its best efforts to effect each Registration, and to cooperate with the registration sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided in Section 5.1quickly as practicable, Section 5.2 and Section 5.3 the Company shall Parent will as expeditiously as reasonably possible:
(ia) subject, in the case of an Incidental Registration, to the proviso to Section 3.1(a), prepare and file with the SEC a the registration statement to effect such registration and thereafter use reasonable its best efforts to cause such registration statement the Registration 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 are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such any registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company Parent will furnish to the counsel selected by holders of the Shareholders which are including Registrable Securities in covered by such registration (“Selling Shareholders”) statement, their counsel, and the underwriters, if any, and their counsel, copies of all such documents proposed to be filedfiled at least 10 days prior thereto, which documents will be subject to the review and comment reasonable review, within such 10-day period, of such counselholders, and such review and comment to be conducted with reasonable promptness their counsel and the Company shall underwriters; and the Parent will not file any registration statement or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference) to which the Selling Shareholders (representing a majority of the Registrable Securities included in Requisite Holders shall reasonably object within such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders10-day period;
(iib) subject, in the case of an Incidental Registration, to the proviso to Section 3.1(a), prepare and file with the SEC such amendments and supplements post-effective amendments to such any registration statement and the any 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 securities Registrable Securities covered by such registration statement; and cause the prospectus to be supplemented by any required prospectus supplement, in each case in accordance with and as so supplemented to be filed pursuant to Rule 424 under the terms of this Article VSecurities Act;
(iiic) furnish to each Selling Shareholder holder of Registrable Securities included in such Registration and each underwriterthe underwriter or underwriters, if any, without charge, at least one signed copy of the securities being sold by such Selling Shareholder registration statement and any post-effective amendment thereto, upon request, and such number of conformed copies of such registration statement thereof 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 Actany amendments or supplements thereto and any documents incorporated by reference therein, and such other documents as such Selling Shareholder and underwriter, if any, holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned being sold by such Selling Shareholder;
holder (iv) it being understood that the Parent consents to the use reasonable best efforts to register of the prospectus and any amendment or qualify such supplement thereto by each holder of Registrable Securities covered by such registration statement under such other securities laws and the underwriter or blue sky laws of such jurisdictions as any Selling Shareholder underwriters, if any, in connection with the offering and any underwriter sale of the securities being sold Registrable Securities covered by such Selling Shareholder shall reasonably requestthe prospectus or any amendment or supplement thereto);
(d) notify each holder of the Registrable Securities of any stop order or other order suspending the effectiveness of any registration statement, issued or threatened by the SEC in connection therewith, and take all reasonable actions required to prevent the entry of such stop order or to remove it or obtain withdrawal of it at the earliest possible moment if entered;
(e) if requested by the managing underwriter or underwriters, if any, or any holder of Registrable Securities in connection with any sale pursuant to a registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information relating to such underwriting as the managing underwriter or underwriters, if any, or such holder reasonably requests to be included therein; 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;
(f) on or prior to the date on which a Registration is declared effective, use its best efforts to register or qualify, and cooperate with the holders of Registrable Securities included in such Registration, the underwriter or underwriters, if any, and their counsel, in connection with the registration or qualification of the Registrable Securities covered by such Registration for offer and sale under the securities or "blue sky" laws of each state and other action which may jurisdiction of the United States as any such holder or the managing underwriter, if any, reasonably requests in writing; use its 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 reasonably kept effective; and do any and all other acts or things necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in all such jurisdictions reasonably requested of the Registrable Securities owned covered by such Selling ShareholderRegistration; provided, except however, that the Company shall Parent 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 is not then so qualified or to take any action which would not but for the requirements of this clause (iv) be obligated subject it to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject;
(vg) in connection with any sale pursuant to a Registration, cooperate with the holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Securities to be sold under such Registration, and enable such Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such holders may request;
(h) use reasonable its best efforts to cause such the 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 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 within the United States and having jurisdiction over the Parent, the Company or any other Subsidiary as may reasonably be necessary to enable the Selling Shareholder(s) seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Securities;
(i) enter into such agreements (including underwriting agreements in customary form) and take such other actions as the Requisite Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(viij) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriteruse its best efforts to obtain:
(Ai) an opinion at the time of counsel for effectiveness of each Registration, a "comfort letter" from the Company, Parent's independent certified public accountants covering such matters of the matters type customarily covered in opinions requested in underwritten offerings by "cold comfort letters" as the Requisite Holders and such other matters as may be the underwriters reasonably requested by such Selling Shareholder and underwriters, request; and
(Bii) a “comfort” letter (or, in at the case time of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition underwritten sale pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment theretoa "bring-down comfort letter," dated as of the date of such sale, from the prospectus or any prospectus supplement related thereto or post-effective amendment to Parent's independent certified public accountants covering such matters of the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to type customarily covered by comfort letters as the registration statement or any post-effective amendment thereto, when Requisite Holders and the same has become effectiveunderwriters reasonably request;
(Bk) use its best efforts to obtain, at the time of effectiveness of each Registration and at the time of any request by the SEC sale pursuant to each Registration, an opinion or any other Government Entity for amendments or supplements opinions, favorable to the registration statement or Requisite Holders in form and scope, from counsel for the prospectus or for additional informationParent in customary form;
(Cl) the issuance by the SEC or any other Government Entity notify each seller of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) 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;
(x) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities ActRegistration, upon discovery that, or upon the happening of any event as a result of which, the any prospectus included in such registration statementRegistration, 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, andand promptly prepare, at file with the request of any Selling Shareholder, promptly prepare SEC and furnish to such seller or 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 or prospective 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 under which they are made;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiim) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to Selling Shareholders, its security holders (as soon as reasonably practicable, contemplated by section 11(a) under the Securities Act) an earnings statement satisfying the provisions of Rule 158 under the Securities Act no later than 90 days after the end of the Company covering the 12-month period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day month of the Company’s Parent's first full fiscal quarter commencing 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 thereundercover said 12-month period;
(xiiin) 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 Class P Shares;
(xiv) cooperate with the 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) 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 Selling Shareholders may request and keep available and make available to the Company’s maintained a transfer agent prior to and registrar for all Registrable Securities covered by each Registration from and after a date not later than the effectiveness effective date of such registration statement a supply of such certificatesRegistration; and
(xvo) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable its best efforts to facilitate cause all offeringsRegistrable Securities covered by each Registration to be listed subject to notice of issuance, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant prior to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President date of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution first sale 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to such Registration, on each securities exchange on which the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) Parent Common Stock is then listed; and, if the Parent Common Stock is not so directed listed, to use its best efforts to cause all Registrable Securities covered by each Registration to be designated as National Market System Securities, if the CompanyParent Common Stock is so designated (and, deliver if the Parent Common Stock is listed on the NASDAQ National Market or the NASDAQ SmallCap Market, to cause all Registrable Securities to be so listed); and, if the CompanyParent Common Stock is not so designated, to arrange for at least two market makers to register with the Company’s expense, all copies, other than permanent file copies, then in NASD as such Selling Shareholder’s possession of the prospectus current at the time of receipt of such notice relating with respect to such Registrable Securities. In the event the Company shall give such notice, any applicable one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders The Parent may require each holder of Registrable Securities that will be included in such Registration to furnish the benefits Parent with such information in respect of Rule 144 under the such holder of its Registrable Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined will be included in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long Registration as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder Parent may reasonably request in connection with the sale of Registrable Securities without registrationwriting and as is required by applicable laws or regulations.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Stockholders Agreement (Scharf Micheal J), Stockholders Agreement (Niagara Corp)
Registration Procedures. (a) If and whenever the Company is required In connection with Genesis MLP's obligations to register Common Units pursuant to this Agreement, Genesis MLP will use reasonable best efforts Reasonable Efforts to effect such registration so as to permit the registration sale of any Registrable Securities under the Securities Act as provided Common Units included in Section 5.1such registration, Section 5.2 and Section 5.3 the Company shall pursuant thereto Genesis MLP will as expeditiously as reasonably possible:
(iA) as soon as reasonably practicable after receipt of a Notice of Demand and a Participation Notice (or the expiration of the period for receipt thereof), prepare and file with the SEC a the requisite registration statement to effect such registration and thereafter use reasonable best efforts Reasonable Efforts to cause such registration statement to become and remain be declared effective pursuant to by the terms of this Agreement; providedSEC, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses amendment or supplements supplement thereto), the Company Genesis MLP will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) Participating Holders copies of drafts of all such documents proposed to be filedfiled (excluding exhibits, which documents will shall be subject to the review and comment of such counselmade available upon request by any Participating Holder), and any Participating Holder shall have the opportunity to timely object to any information relating to such review Participating Holders contained therein and comment Genesis MLP will make the corrections reasonably requested with respect to be conducted with reasonable promptness and the Company shall not file information relating to such Participating Holder prior to filing any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) objectregistration statement, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersamendment or supplement;
(iiB) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective complete the distribution of the securities covered thereby and as may be required to comply with the provisions Section 4(3) of the Securities Act with respect and Rule 174 thereunder;
(C) furnish to each underwriter participating in the disposition distribution of all securities covered by under such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including excluding all exhibitsexhibits and documents incorporated by reference, which exhibits and documents shall be furnished upon request), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, underwriter may reasonably request in order to facilitate the public sale or other disposition distribution of the Registrable Securities owned by such Selling ShareholderCommon Units;
(ivD) use reasonable best efforts Reasonable Efforts to register or qualify such Registrable Securities all Common Units and other securities covered by such registration statement under such all applicable blue sky and other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably requestlaws, and take any other action which may be reasonably necessary to keep such registration or advisable to enable qualification in effect for so long as such Selling Shareholder and underwriter to consummate the disposition registration statement remains in such jurisdictions of the Registrable Securities owned by such Selling Shareholdereffect, except that the Company Genesis MLP shall not for any such purpose be required to (Aa) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (ivD) be obligated to be so qualified, (Bb) subject itself to taxation in any such jurisdiction or (Cc) file a general consent to general service of process in any such jurisdiction;
(vE) use reasonable best efforts 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 reasonable best efforts to cause such Registrable Securities all Common Units covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary applicable to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters Genesis MLP as may be reasonably requested by necessary to enable Genesis MLP (or underwriter or agent, if any) to consummate the offering and sale of such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in Common Units pursuant to such registration statement;
(viiiF) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant use Reasonable Efforts to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) prevent the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement governmental agency or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 court of a material fact stop order, injunction 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any other order suspending the effectiveness of such registration statementstatement and, if such an order is issued, use Reasonable Efforts to cause such order to be lifted as promptly as practicable;
(xiiG) otherwise use reasonable best efforts take such other actions as are reasonably necessary to comply with all applicable rules and regulations of expedite or facilitate the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date disposition of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificatesCommon Units; and
(xvH) in participate, to the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as extent reasonably requested by the Selling Shareholders and the underwriters in managing underwriter for the offering, marketing or selling of in customary efforts to sell the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 securities under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationoffering.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Redemption and Registration Rights Agreement (Genesis Energy Lp), Redemption and Registration Rights Agreement (Genesis Energy Lp)
Registration Procedures. (a) If Subject to the requirements set forth in Section 5(b) and Section 9, whenever the Holders have requested that any Registrable Securities be registered pursuant to this Agreement or made a Shelf Offering Request, the Company is required to shall use 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 Section 5.1intended method of disposition thereof, Section 5.2 and Section 5.3 pursuant thereto the Company shall as expeditiously as reasonably possible:
(i) in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, prepare and file with the SEC Securities and Exchange Commission a registration statement with respect to effect such registration Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to become effective and remain effective pursuant for such period of time as is necessary to enable the terms disposition 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 the registration statement relating thereto; provided, further that within a reasonable time before filing covered by such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersstatement;
(ii) in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, prepare and file with the SEC Securities and Exchange Commission such amendments and supplements, and any prospectuses or prospectus supplements used in connection with such registration statements, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;
(iii) notify each Holder of (A) the issuance by the Securities and Exchange Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Company or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (C) the filing and subsequent effectiveness of each registration statement filed hereunder, and (D) the filing and subsequent effectiveness of any supplement to, or amendment of, any prospectus forming part of each registration statement filed hereunder;
(iv) subject to the requirements set forth in Section 5(b) and Section 9, and subject always to the provisions of Section 2, prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be required in accordance with the provisions of Section 2(c)(i), and to comply in all material respects with the provisions of the Securities Act Act, as applicable to the Company, with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such registration statement;
(iiiv) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), Registrable Securities thereunder 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 ), 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, Prospectus and such other documents as such Selling Shareholder 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 Selling Shareholderseller;
(ivvi) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder selling Holder reasonably requests and do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except selling Holder (provided 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 (iv) be obligated to be so qualifiedsubparagraph, (B) subject itself to taxation in any such jurisdiction in which it was not otherwise subject to taxation or (C) file produce a general consent to service of process prospectus or other disclosure or similar document in any such jurisdiction, except as may be required by the Securities Act);
(vvii) notify each selling Holder (A) as soon as practicable after receipt thereof, of any written comments by the Securities and Exchange Commission, or any request by the Securities and Exchange Commission or other federal or state governmental authority for amendments or supplements to such registration statement or such prospectus, or for additional information (whether before or after the effective date of the registration statement) or any other correspondence with the Securities and Exchange Commission relating to, or which may affect, the registration and make every reasonable effort to respond to, and as applicable, resolve, such comments and (B) 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, to the Company’s knowledge, an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in any material respect, and, subject to Section 2(e), at the reasonable request of any such seller, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in any material respect;
(viii) use reasonable best efforts to cause all such Registrable Securities to be listed on each such securities exchange on which similar securities the other Ordinary Shares issued by the Company are then listed andlisted;
(ix) provide a transfer agent, if no such securities are so listed, use commercially reasonable efforts to cause registrar and CUSIP number for all such Registrable Securities to be listed on not later than the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition effective date of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viiix) promptly enter into and perform its obligations under such customary agreements (including underwriting agreements in customary form), which may include indemnification provisions in favor of underwriters, and make such representations and warranties to the underwriters, if any, in form, substance and scope as are customarily made by issuers in public offerings similar to the offering then being undertaken;
(xi) make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any such registration statement, statement and any attorney, accountant or other agent or representative attorney retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”)underwriter, all financial and other records, pertinent corporate and business documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors employees and employees independent accountants to make themselves available (xupon adequate notice and as reasonably required) to discuss the business of the Company and to supply all information reasonably requested by any such Inspector underwriter or its attorney in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); providedstatement, howeverin each case, that, the disclosure of such Records may be subject to the execution by extent in accordance with customary practice for such Selling Shareholder dispositions or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Companytransactions;
(ixxii) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment use reasonable best efforts to the registration statement or ensure that any Free Writing Prospectus utilized in connection therewithwith any Demand Registration or Piggyback Registration hereunder complies in all material respects with the Securities Act, and, is filed in accordance with respect the Securities Act to the registration statement or any post-effective amendment theretoextent required thereby, when and is retained in accordance with the same has become effectiveSecurities Act to the extent required thereby;
(Bxiii) any request by in the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) event of the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the a registration statement statement, or the initiation issuance of any proceedings by any Person for that purpose; and
(D) order suspending or preventing the receipt by the Company use of any notification with respect to the suspension of related prospectus or suspending the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Ordinary Shares included in such registration statementstatement for sale in any jurisdiction, use reasonable best efforts to obtain the withdrawal of such order;
(xiv) cooperate with any selling Holder and underwriter participating in the disposition of such Registrable Securities and their counsel as then may be reasonably requested in effect, includes an untrue statement of a material fact or omits to state connection with any material fact filings required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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 misleadingmade with FINRA;
(xixv) use reasonable best efforts to prevent, make available officers of the Company to participate with any underwriters in any “road shows” or other customary selling efforts that may be agreed in advance between the Holders and obtain the withdrawal of, any order suspending Company in connection with the effectiveness methods of such registration statementdistribution for the Registrable Securities;
(xiixvi) otherwise use reasonable best efforts in the case of any underwritten Public Offering pursuant to comply with all applicable rules the rights contained in this Agreement and regulations of to the SECextent reasonably requested by the managing underwriters, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to obtain one or more comfort letters from the Company to provide for a third party “market maker” for Company’s independent registered public accountants in customary form and covering such matters of the Class P Sharestype customarily covered by comfort letters;
(xivxvii) cooperate subject to the requirements set forth in Section 5(b) and Section 9, in the case of any underwritten Public Offering pursuant to the rights contained in this Agreement and to the extent reasonably requested by the managing underwriters, use its reasonable best efforts to provide a legal opinion and negative assurance statement of the Company’s outside counsel (which may be addressed to the underwriters), dated the closing date of the Public Offering, in customary form and covering such matters of the type customarily covered by legal opinions and negative assurance statements of such nature, which opinion and negative assurance statement shall be addressed to the underwriters;
(xviii) if the Company files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which such Automatic Shelf Registration Statement is required to remain effective in accordance with the Selling Shareholders and provisions of Section 2(c)(i);
(xix) take no direct or indirect action prohibited by Regulation M under the managing underwriter to facilitate the timely preparation and delivery of certificates Exchange Act;
(which shall not bear any restrictive legends unless xx) if required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to by the Company’s transfer agent prior in connection with a proposed sale of shares by a Holder, the Company will use reasonable efforts to cause opinions of Company counsel to be delivered to the effectiveness transfer agent, together with any authorization or direction letter from the Company, as required by the transfer agent to transfer shares without any restrictive legend;
(xxi) use all reasonable efforts to facilitate the settlement of such registration statement a supply the shares to be sold pursuant to this Agreement, including through the facilities of such certificatesThe Depository Trust Company; and
(xvxxii) in take all other customary steps reasonably necessary to effect the case of an Underwritten Offeringregistration, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling sale and listing of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million Securities contemplated hereby.
(as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. b) The Company may require each Selling Shareholder and each underwriterHolder requesting, if anyor electing to participate in, any registration to furnish the Company in writing such information regarding each Selling Shareholder or underwriter such Holder 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 in writing. Each of the foregoingHolders severally represents, warrants and agrees that such Holder: (i) will at all times co-operate with the Company in order to carry out this Agreement; (ii) will promptly do all things required of such Holder, and provide the event that the offering of Registrable Securities is to be made by Company or through an underwriterunderwriters, the Companyas applicable, if requested by the underwriterwith all deliverables required from such Holder, shall enter into an underwriting agreement with a managing underwriter or underwriters in connection with any Demand Registration or Piggyback Registration; and (iii) will comply with all requirements of any underwriting agreement applicable to such offering containing representationsHolder, warranties, indemnities and agreements customarily included (including but not inconsistent with limited to, entering into, providing and/or procuring the covenants delivery of certificates, letters, questionnaires, powers of attorney, custody agreements, indemnities, opinions and agreements other reasonably requested documents, in each case as customarily provided in, and in customary form for, offerings similar to the offering then being undertaken. Any obligations of the Company contained herein) by an issuer of common stock to comply with timing requirements in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale distribution of Registrable Securities without registration.
shall be subject to each such Holder’s performance under this clause (e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreementb) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelySection 9.
Appears in 2 contracts
Sources: Registration Rights Agreement (IHS Holding LTD), Registration Rights Agreement (IHS Holding LTD)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the registration and/or offering of any Registrable Securities under the Securities Act as provided in Section 5.11.1, Section 5.2 and 1.2 or Section 5.3 1.3, the Company shall as expeditiously as reasonably possiblepracticable:
(i) prepare and file with the SEC Commission a registration statement to effect such registration in accordance with the intended method or methods of distribution of such securities and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this AgreementArticle I; 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders Holders which are including Registrable Securities in such registration (“Selling ShareholdersStockholders”), their counsel and the lead managing underwriter(s) and their counsel, if any, copies of all such documents proposed to be filed, which documents will be subject to the review and reasonable comment of such counsel, and other documents reasonably requested by such review counsel, including any comment letter from the Commission, and, if requested by such counsel, provide such counsel a reasonable opportunity to participate in the preparation of such registration statement and comment to be conducted with reasonable promptness and the each prospectus included therein. The Company shall not file any such documents registration statement or prospectus or any amendments or supplements thereto with respect to a Demand Registration to which the Selling Shareholders (representing Holders of a majority of the Registrable Securities included in such registration) held by the Selling Stockholder(s), their counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates unless, in the opinion of the Company, such filing is necessary to such Selling Shareholderscomply with Applicable Law;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article I, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) if requested by the lead managing underwriter(s), if any, or the Holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as 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 1.6(a)(iii) that are not, in the opinion of counsel for the Company, in compliance with Applicable Law;
(iv) furnish to each the Selling Shareholder Stockholders and each underwriter, if any, of the securities being sold by such Selling Shareholder Stockholders such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits)thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder Stockholders and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderStockholders;
(ivv) use reasonable best efforts to register or qualify or cooperate with the Selling Stockholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such jurisdictions as any the Selling Shareholder Stockholders and any underwriter of the securities being sold by such Selling Shareholder Stockholders shall reasonably request, and to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any other action which may be reasonably necessary or reasonably advisable to enable such Selling Shareholder Stockholders and underwriter underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderStockholders, 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 (ivv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(vvi) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable best efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vivii) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the Selling Shareholder(sStockholder(s) thereof to consummate the disposition of such Registrable Securities;
(viiviii) use reasonable best efforts to 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;
(ix) in an Underwritten Offering, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and in connection therewith, (A) make representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company and its subsidiaries, and the registration statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers in underwritten offerings, and, if true, confirm the same if and when requested, (B) include in the underwriting agreement indemnification provisions and procedures substantially to the effect set forth in Section 1.9 hereof with respect to the underwriter and all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Securities being sold and (C) deliver such documents and certificates as are reasonably requested by the Holders of a majority of the Registrable Securities being sold, their counsel and the lead managing underwriters(s), if any, to evidence the continued validity of the representations and warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement;
(x) in connection with an Underwritten Offering, use reasonable best efforts to obtain for each Selling Shareholder and underwriter:
(A) an opinion for the underwriter(s) opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder underwriters and underwriters, and
(B) a for the Selling Stockholders and underwriter(s) “comfort” letter letters and updates thereof (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” letterletter to the extent deliverable in accordance with the policies of such accountants) signed by the independent public accountants who have certified the Company’s financial statements and, to the extent required, any other financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(viiixi) promptly make available for inspection by any the Selling ShareholderStockholders, any underwriter participating in any disposition offering pursuant to any registration statement, and any attorney, accountant or other agent or representative retained in connection with such offering by any such Selling Shareholder Stockholders or underwriter (collectively, the “Inspectors”), all such financial and other records, pertinent corporate documents and properties instruments of the Company (collectively, the “Records”), as shall be reasonably necessary necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees of the Company and its subsidiaries (and use its reasonable best efforts to (xcause its auditors) to participate in customary due diligence calls and to supply all information in each case reasonably requested by any such Inspector representative, underwriter, attorney, agent or accountant in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, thatthat the Company shall not be required to provide any information under this clause (xi) if (A) the Company reasonably 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 (B) if either (1) 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 (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless prior to furnishing any such information with respect to clause (1) or (2) such Selling Stockholder requesting such information enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Stockholder agrees that it will, upon learning that disclosure of such Records may be subject is sought in a court of competent jurisdiction or by another Governmental Authority, give notice to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(ixxii) as promptly as practicable notify in writing each the Selling Shareholder Stockholders and the underwriters, if any, of the following events:
: (A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
; (B) any request by the SEC Commission or any other Government Entity U.S. or state governmental authority for amendments or supplements to the registration statement or the prospectus or for additional information;
; (C) the issuance by the SEC or any other Government Entity 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
(D) 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 sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xE) notify in writing each Selling Shareholder, if at any time when a prospectus relating thereto is required the representations and warranties of the Company contained in any underwriting agreement contemplated by Section 1.6(a)(ix) cease to be delivered under true and correct in any material respect; and (F) subject to the Securities Actprovisions of this Agreement relating to a Blackout Period, upon discovery that, or upon the happening of any event as a result that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which, the prospectus included any changes in such registration statement, as then prospectus or documents so that, in effectthe case of the 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, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of any Selling ShareholderStockholder, promptly prepare and furnish to such seller Selling Stockholder a reasonable number of copies of a supplement to or an amendment of such registration statement or 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 were made, not misleading;
(xixiii) use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations , or the lifting of any suspension of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement qualification (or exemption from qualification) of any of the Company covering Registrable Securities for sale in any jurisdiction at the period of at least twelve (12) monthsearliest reasonably practicable date, but not more than eighteen (18) monthsexcept that, beginning with subject to 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 requirements of Section 11(a1.6(a)(v), 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 the Securities Act and Rule 158 thereunder;
this clause (xiii) use its reasonable best efforts be obligated to assist Selling Shareholders who made be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a request general consent to the Company to provide for a third party “market maker” for the Class P Sharesservice of process in any such jurisdiction;
(xiv) cooperate with the Selling Shareholders Stockholders and the lead managing underwriter underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable lawApplicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter underwriter(s) or such Selling Shareholders 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;
(xv) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(xvxvi) in the case of an Underwritten Offering, cause the have appropriate officers of the Company to use prepare and make presentations at a reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any number of “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingsbefore analysts, as the case may be, and other information meetings and customary marketing activities reasonably organized by the underwriters, underwriters and otherwise using their use its reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders Stockholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million .
(as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. b) The Company may require each Selling Shareholder Stockholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder Stockholder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyStock
Appears in 2 contracts
Sources: Registration Rights Agreement (Global Blue Group Holding AG), Agreement and Plan of Merger (Far Point Acquisition Corp)
Registration Procedures. In the event a Covered Person properly exercises its rights under this Article II (a) If and whenever on each occurrence, an “Exercising Covered Person”), subject to the provisions of the applicable sections of Article II, the Company is required to shall use its commercially reasonable best efforts to effect the registration and the sale of the Registrable Securities, in accordance with the intended method of disposition thereof as promptly as practicable, and, in connection with any Registrable Securities under such request (to the Securities Act as provided extent applicable, in the case of a registration pursuant to Section 5.1, Section 5.2 and Section 5.3 the 2.1):
(a) The Company shall as expeditiously as reasonably possible:
(i) practicable prepare and file with the SEC a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use its commercially reasonable best efforts to cause such filed registration statement to become and remain effective pursuant effective, until all of the Registrable Securities included in such registration statement shall have actually been sold thereunder. The Company in its sole discretion may condition the inclusion of Registrable Securities in a registration upon the timely provision by a holder selling Registrable Securities in such registration of such information as the Company may reasonably request relating to the terms disclosure requirements of this Agreement; Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such registration).
(b) Prior to filing a registration statement or prospectus or any amendment or supplement thereto, the Company shall, if requested, furnish to an Exercising Covered Person and each underwriter, if any, of the Registrable Securities covered by such registration statement, copies of such registration statement as proposed to be filed, and thereafter the Company shall furnish to an Exercising Covered Person and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as an Exercising Covered Person or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities subject to registration. An Exercising Covered Person shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to an Exercising Covered Person or its members and the Company shall use its all commercially reasonable efforts to comply with such request, provided, however, that the Company may discontinue shall not have any registration obligation so to modify any information if the Company reasonably expects that so doing would cause the prospectus to contain an untrue statement of its securities which are a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not Registrable Securities at any time prior to misleading.
(c) After the effective date filing of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto)statement, the Company will furnish to shall (i) cause the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed related prospectus to be filedsupplemented by any required prospectus supplement, which documents will be subject to the review and comment of such counseland, and such review and comment as so supplemented, to be conducted with reasonable promptness and filed pursuant to Rule 424 under the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) objectAct, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities the Registrable Securities covered by such registration statement, in each case statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriterdisposition by the Exercising Covered Person or its members, if anyas applicable, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained set forth in such registration statement (including each preliminary or supplement to such prospectus and (iii) promptly notify the Exercising Covered Person of any summary prospectus) stop order issued or threatened by the SEC or any state securities commission and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use take all reasonable best efforts to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its commercially reasonable best efforts to (i) 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 in the United States as any Selling Shareholder and any underwriter the Exercising Covered Person or its members, as applicable, reasonably (in light of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions intended plan of distribution of the Registrable Securities owned by such Selling ShareholderExercising Covered Person or its members, except that the Company shall not for any such purpose be required to as applicable,) requests and (Aii) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Selling Shareholder(s) thereof an Exercising Covered Person or its members, as applicable, to consummate the disposition of the Registrable Securities owned by such Registrable Securities;
(vii) in connection with an Underwritten OfferingExercising Covered Person or its members, obtain for each Selling Shareholder and underwriter:
as applicable, provided that the Company shall not be required to (A) an opinion of counsel qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for the Companythis Section 2.5(d), covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, subject itself to taxation in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant jurisdiction or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or consent to general service of process in any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; andsuch jurisdiction.
(De) the receipt by the The Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) shall immediately notify in writing each Selling Shareholderan Exercising Covered Person, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, or upon as thereafter delivered to the happening purchasers of any event as a result of whichsuch Registrable Securities, the such prospectus included in such registration statement, as then in effect, includes will not contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Shareholder, misleading and 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersan Exercising Covered Person and file with the SEC any such supplement or amendment.
(f) The Company shall select an underwriter or underwriters in connection with any Public Offering; provided that, in the event of a Takedown or a Demand Registration, such underwriter or underwriters shall be reasonably acceptable to ICGH LLC. In connection with any Public Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take such all other actions as soon as are reasonably practicablerequired in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering, an earnings statement including, to the extent necessary, the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with FINRA.
(g) Subject to the execution of confidentiality agreements satisfactory in form and substance to the Company in the exercise of its good faith judgment, the Company will give to ICGH LLC, its counsel and accountants (i) reasonable and customary access to its books and records and (ii) such opportunities to discuss the business of the Company covering with its directors, officers, employees, counsel and the period independent public accountants who have certified its financial statements, as shall be appropriate, in the reasonable judgment of at least twelve counsel to ICGH LLC, to enable it to exercise its due diligence responsibility.
(12h) monthsThe Company shall use its commercially reasonable efforts to furnish to an Exercising Covered Person and to each such underwriter, but not more than eighteen if any, a signed counterpart, addressed to such Exercising Covered Person or such underwriter, of (18i) months, beginning with an opinion or opinions of counsel to the first day of Company and (ii) a comfort letter or comfort letters from the Company’s first full quarter after the effective date of independent public accountants, each in customary form and covering such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) matters of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) 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 kind customarily covered by opinions or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingscomfort letters, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as such Exercising Covered Person therefor reasonably requested by the Selling Shareholders and the underwriters requests.
(i) An Exercising Covered Person shall promptly furnish in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant writing to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete and such other information as may be legally required 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters advisable in connection with such offering 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 such underwriting agreementsregistration.
(cj) Each Selling Shareholder An Exercising Covered Person agrees that that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x2.5(e), such Selling Shareholder an Exercising Covered Person shall forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Selling Shareholder’s disposition Registrable Securities (and will notify its members who are disposing of Registrable Securities pursuant to the applicable such registration statement and prospectus relating thereto to discontinue such disposition), until such Selling ShareholderExercising Covered Person’s receipt and distribution to its members, as applicable, of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 2.5(e), and, if so directed by the Company, such Exercising Covered Person shall deliver to the Company, at the Company’s expense, Company all copies, other than any permanent file copies, then in such Selling Shareholder’s possession Exercising Covered Person or its members’ possessions, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 2.5(a)) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x2.5(e) to the date when all the Company shall make available to such Selling Shareholders shall receive such Exercising Covered Person a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 2.5(e).
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(ek) The Company shall use its commercially reasonable best efforts to take list all action necessary Registrable Securities covered by such registration statement on any securities exchange or quotation system on which any of the Registrable Securities are then listed or traded.
(l) The Company shall have appropriate upon officers of the request of Company (i) prepare and make presentations at any Investor Shareholder to ensure that Class A Shareholders are, from “road shows” and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding)before analysts, as contemplated the case may be, and (ii) otherwise use their commercially reasonable efforts to cooperate as reasonably requested by the Charterunderwriters in the offering, and shall not take marketing or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality selling of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyRegistrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Imperial Capital Group, Inc.), Registration Rights Agreement (Imperial Capital Group, Inc.)
Registration Procedures. (a) If and whenever the Company is required ----------------------- by the provisions of this Agreement to use reasonable its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possible:
(ia) prepare and file with the SEC Commission a registration statement to effect on an appropriate registration form of the Commission for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which 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 form and thereafter include all financial statements required by the Commission to be filed therewith, and the Company shall use 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 within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), or comparable statements under securities or blue sky laws of any jurisdiction, the Company will furnish furnish, if requested, to one counsel for the counsel Holders participating in the planned offering (selected by the Shareholders which are including Registrable Securities Holders making the Demand Registration Request, in such the case of a registration (“Selling Shareholders”) copies of all such documents proposed pursuant to be filed, which documents will be subject to the review and comment of such counselSection 2.1, and such review and comment to be conducted with reasonable promptness and selected by the Company shall not file any such documents to which the Selling Shareholders (representing Holders of a majority of the Registrable Securities included in such registration) object, in the case of a registration pursuant to Section 2.2) and the underwriters, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel, and the Company shall not file any registration statement or amendment thereto or any prospectus or supplement thereto to which the holders of a majority of the Registrable Securities covered by such registration statement or the underwriters, if any, shall reasonably object in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders);
(iib) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for such period (which shall not be required to exceed the shorter of (i) 150 days in the case of a registration pursuant to Section 2.1 or 120 days in the case of a registration pursuant to Section 2.2 or (ii) such shorter period when all Registrable Securities covered by such registration statement shall have been sold in the manner set forth and as contemplated in such registration statement) 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, in each case statement in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement;
(iiic) furnish furnish, without charge, to each Selling Shareholder seller of such Registrable Securities and each underwriter, if any, of the securities being sold covered by such Selling Shareholder 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder 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 Selling Shareholderseller (the Company 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 reasonable its best efforts to register or qualify such the Registrable Securities covered by such registration statement under such other state securities laws or "blue sky sky" laws of such jurisdictions within the United States as any Selling Shareholder and sellers of Registrable Securities or any underwriter managing underwriter, if any, shall reasonably request in writing in advance of the securities being sold by effectiveness of such Selling Shareholder shall reasonably requestregistration statement, and take do any and all other action which may be acts and things as are reasonably necessary or advisable to enable such Selling Shareholder and underwriter sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such Selling Shareholderjurisdictions, except that in no event shall the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities 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, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best 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, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best 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 Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for and each Selling Shareholder and managing underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
: (Ai) the filing of when the registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, has been filed and, with respect to the registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC Commission or any other Government Entity state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity 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
(Div) 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 state securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, 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 any statements therein not misleading, ; and (vi) if at any time the representations and warranties contemplated by Section 3 below cease to be true and correct in all material respects; and, at if the request of any Selling Shareholdernotification 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 therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company may postpone taking -------- ------- action with respect to a supplement or amendment to the applicable registration statement or a supplement or amendment to the related prospectus or any document incorporated or deemed to be incorporated therein by reference if the Board of Directors of the Company, in its good faith judgment, determines that the registration of Registrable Securities related to such registration statement or prospectus should not be made or continued due to the existence of a Valid Business Reason, provided that such postponement may only take place until such Valid Business Reason no longer exists, but in no event for more than six months;
(xif) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to Selling Shareholdersits security holders, as soon as reasonably practicablepracticable after the effective date of the registration statement (and in any event within 16 months thereafter), an earnings statement of the Company (which need not be audited) covering the period of at least twelve (12) months, but not more than eighteen (18) months, consecutive 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;
(xiiii) 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 (ii) if no similar securities are then so listed, cause all such Registrable Securities to be listed on a national securities exchange or, failing that, secure designation of all such Registrable Securities as a National Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or, failing that, secure NASDAQ authorization for such shares 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 the National Association of Securities Dealers, Inc. (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 and reasonable agreements (including, if applicable, an underwriting agreement) and take such other appropriate actions as the Holders of a majority of the Registrable Securities participating in such offering shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, provided that the underwriting agreement, if any, shall be reasonably satisfactory in form and substance to the Company. The Holders of the Registrable Securities which are to be distributed by such underwriters shall be parties to 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 and which are of the type customarily provided to institutional investors in secondary offerings; provided, however, that the Company shall not be required -------- ------- to make any representations or warranties with respect to information specifically provided by a selling holder or any underwriter for inclusion in the registration documents;
(j) obtain an opinion from the Company's counsel and a "cold comfort" letter from the Company's independent public accountants in customary form and covering such matters as are customarily covered by such opinions and "cold comfort" letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any, and to the Holders of a majority of the Registrable Securities 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 Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement, other than those portions of any such correspondence and memoranda which contain information subject to attorney-client privilege with respect to the Company, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by any seller of such 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 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 (the foregoing confidentiality agreements will require such Holders to agree that, among other things, (i) the information obtained by them as a result of such inspections shall be deemed confidential and shall not be used by them as the basis for any market transactions in the securities of the Company unless and until such information is made generally available to the public, and (ii) upon learning that disclosure of such information may be required pursuant to a subpoena or other order from a court of competent jurisdiction, they will give notice to the Company and allow the Company at its expense to undertake appropriate action to prevent disclosure of the information and other records of the Company deemed confidential);
(l) use its reasonable best efforts to assist Selling Shareholders who made a request to obtain the Company to provide for a third party “market maker” for withdrawal of any order suspending the Class P Shareseffectiveness of the registration statement;
(xivm) 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 the Company's 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 which 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 to the selling holders of Registrable Securities and to the 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 selling holders prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;
(p) furnish to each Holder participating in the offering and the managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(q) cooperate with the Selling Shareholders 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) 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 in accordance with the managing underwriter or such Selling Shareholders may request and keep available and make available underwriting agreement prior to any sale of Registrable Securities to the Company’s transfer agent underwriters or, if not an underwritten offering, in accordance with the instructions of the selling holders of Registrable Securities at least three business days prior to the effectiveness any sale of such registration statement a supply of such certificatesRegistrable Securities; and
(xvr) take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the case disposition of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the such Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require as a condition precedent to the Company's obligations under this Section 2.4 that each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution seller of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such which 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, being effected furnish the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Pny Technologies Inc), Registration Rights Agreement (Pny Technologies Inc)
Registration Procedures. (a) If and whenever the Company is required to file a registration statement with respect to, or to use its reasonable best efforts to effect or cause the registration of of, any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a registration statement on an appropriate form with respect to effect such Registrable Securities and, if such registration and thereafter statement is not an automatically effective registration statement, use 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 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 within a reasonable time before filing such a registration statement or prospectus, or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to counsel for the counsel selected by the Shareholders which are including sellers of Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective 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, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition 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 furnish to counsel for the sellers of Registrable Securities covered by such registration statement copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iiic) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder 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, excluding 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(ivd) use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderseller, 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 where, but for the requirements of this clause subsection (iv) d), it would not be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case 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 public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholdersuch 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiig) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits Security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve practicable (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter ) after the effective date of such the registration statement, which an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiiih) (i) use its reasonable best efforts to assist Selling Shareholders who made a request 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 (ii) use its reasonable best efforts to provide a transfer agent and registrar for a third party “market maker” for such Registrable Securities covered by such registration statement not later than the Class P Shareseffective date of such registration statement;
(xivi) 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 as reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement, 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 or any Free Writing Prospectus utilized in connection therewith 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 Selling Shareholders 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 lawlegends) 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 Selling Shareholders agent, if any, or the Holders may request and keep available and request;
(q) use its reasonable best efforts to make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate executive officers of the Company to use reasonable best efforts to facilitate all offerings, including participate with respect to preparing marketing the holders of Registrable Securities and offering materials, preparing, making presentations at, and otherwise participating any underwriters in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case that may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as be reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters holders in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements distribution of the Company contained herein) by an issuer of common stock in such underwriting agreements.Registrable Securities;
(cr) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available obtain for delivery to the holders of Registrable Securities being registered and to the benefits of Rule 144 under the Securities Act and any other rule underwriter or regulation of the SEC that may at any time permit a holder to sell securities of agent an opinion or opinions from counsel for the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor in customary form and in form), the Company shall:
(i) make substance and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject scope reasonably satisfactory to such reporting requirementsholders, underwriters or agents and their counsel; and
(iiis) furnish to any holder so long as cooperate with each seller of Registrable Securities and each underwriter or agent participating in the holder owns disposition of such Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request their respective counsel in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause filings required to be taken (including through the Company’s transfer agent) any action inconsistent made with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyFINRA.
Appears in 2 contracts
Sources: Registration Rights Agreement (New Home Co Inc.), Registration Rights Agreement (New Home Co LLC)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts by the provisions of this Section 2 to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Securities, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleshall:
(ia) promptly prepare and file with the SEC Commission a registration statement with respect to effect such registration Registrable Securities on any form that may be utilized by the Company and thereafter that shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition thereof, and use reasonable its best efforts to cause such registration statement to become effective as promptly as practicable and remain effective pursuant to the terms of this Agreement; providedthereafter as provided herein, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within filing a reasonable time before filing such registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), including documents incorporated by reference after the initial filing of any registration statement, the Company will furnish to each of the counsel selected by the Shareholders which are including Investors whose Registrable Securities in are covered by such registration (“Selling Shareholders”) statement, their counsel and the underwriters copies of all such documents proposed to be filed, which filed sufficiently in advance of filing to provide them with a reasonable opportunity to review such documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersthereon;
(iib) prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and current 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, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by including such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement amendments (including each preliminary prospectus and any summary prospectuspost-effective amendments) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities supplements as may be necessary to enable reflect the Selling Shareholder(s) thereof to consummate intended method of disposition by the disposition prospective seller or sellers of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, provided that except in the case of any a shelf registration under Section 2.2(c) such Person which does registration statement need not satisfy be kept effective and current for longer than 120 days subsequent to the conditions for receipt effective date of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viiic) promptly provide customary indemnity and contribution arrangements to any qualified independent underwriter or qualified independent pricer as defined in Schedule E of the Bylaws of the National Association of Securities Dealers, Inc. (a "Qualified Independent Underwriter/Pricer"), if requested by such Qualified Independent Underwriter/Pricer, on such reasonable terms as such Qualified Independent Underwriter/Pricer customarily requires;
(d) subject to receiving reasonable assurances of confidentiality, for a reasonable period after the filing of such registration statement, and throughout each period during which the Company is required to keep a registration effective, make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statementthe selling holders of Registrable Securities being offered, and any attorneyunderwriters, accountant or other agent or representative retained by any and their respective counsel, such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other recordsinformation and books and records of the Company, pertinent corporate documents and properties cause the officers, directors, employees, counsel and independent certified public accountants of the Company (collectively, the “Records”), to respond to such inquiries as shall be reasonably necessary necessary, in the judgment of such counsel, to enable them to exercise their due diligence responsibilityconduct a reasonable investigation within the meaning of Section 11 of the Securities Act;
(e) promptly notify the selling holders of Registrable Securities and any underwriters and confirm such advice in writing, and cause the Company’s officers, directors and employees to (xi) supply all information requested by any such Inspector in connection with when such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus included therein or any prospectus amendment or supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
, (Bii) of any comments by the Commission, by the National Association of Securities Dealers Inc. ("NASD"), and by the blue sky or securities commissioner or regulator of any state with respect thereto or any request by the SEC or any other Government Entity such entity for amendments or supplements to the such registration statement or the prospectus or for additional information;
, (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation or threatening of any proceedings by any Person for that purpose; and
, (Div) if at any time the representations and warranties of the Company cease to be true and correct in all material respects, (v) 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;
, or (xvi) notify in writing each Selling Shareholder, 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 that such registration statement, as then prospectus, prospectus amendment or supplement or post-effective amendment, or any document incorporated by reference in effectany of the foregoing, includes contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, andin light of the circumstances under which they are made, at the request of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xif) furnish to each selling holder of Registrable Securities being offered, and any underwriters, prospectuses or amendments or supplements thereto, in such quantities as they may reasonably request and as soon as practicable, that update previous prospectuses or amendments or supplements thereto;
(g) permit selling holders of Registrable Securities to rely on any representations and warranties made to any underwriter of the Company or any opinion of counsel or "cold comfort" letter delivered to any such underwriter, and indemnify each such holder to the same extent that it indemnifies any such underwriter;
(h) use reasonable best efforts to prevent, and obtain (i) register or qualify the withdrawal of, any order suspending the effectiveness Registrable Securities to be included in a registration statement hereunder under such other securities laws or blue sky laws of such jurisdictions within the United States of America as any selling holder of such Registrable Securities or any underwriter of the securities being sold shall reasonably request, (ii) keep such registrations or qualifications in effect for so long as the registration statementstatement remains in effect and (iii) take any and all such actions as may be reasonably necessary or advisable to enable such holder or underwriter to consummate the disposition in such jurisdictions of such Registrable Securities owned by such holder; PROVIDED, HOWEVER, that the Company shall not be required for any such purpose to (x) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 2.5(h), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;
(xiii) cause all such Registrable Securities to be listed or accepted for quotation on each securities exchange or automated quotation system on which the Company's Common Stock then trades;
(j) otherwise use reasonable best efforts to comply with all applicable provisions of the Securities Act, and rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the a period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, months which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;; and
(xiiik) use its reasonable best efforts to assist Selling Shareholders who made provide a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery legal opinion of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to 's outside counsel, dated the effectiveness effective date of such registration statement a supply of (and, if such certificates; and
(xv) in registration statement includes an underwritten public offering, dated the case of an Underwritten Offering, cause the appropriate officers date of the Company to use reasonable best efforts to facilitate all offeringsclosing under the underwriting agreement), including with respect to preparing marketing the registration statement, each amendment and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement))supplement thereto, the reference to “prospectus included therein (including the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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.
(bpreliminary prospectus) 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports documents relating thereto in customary form and documents so filed or furnished covering such matters of the type customarily covered by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer legal opinions of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelynature.
Appears in 2 contracts
Sources: Investors Rights Agreement (Satcon Technology Corp), Investors Rights Agreement (Beacon Power Corp)
Registration Procedures. (a) If and whenever In connection with the Company's registration obligations under Section 2 hereof, the Company is required shall effect such registrations to use reasonable best efforts to effect permit the registration sale of any the Registrable Securities under in accordance with the Securities Act as provided in Section 5.1intended method or methods of disposition thereof, Section 5.2 and Section 5.3 pursuant thereto the Company shall as expeditiously as reasonably possible:
(ia) prepare Prepare and file with the SEC a registration statement to effect such registration Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders in accordance with the intended method or methods of distribution thereof and thereafter shall include all required financial statements, and use reasonable its best efforts to cause each such registration statement Registration Statement to become effective and remain effective pursuant to the terms of this Agreementas provided herein; provided, however, provided that before filing any such Registration Statement or Prospectus or any amendments or supplements thereto 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 shall furnish within a reasonable time before filing period to each Selling Holder (if requested by such registration statement or any amendments thereto (including prospectuses or supplements thereto)Selling Holder) and the Managing Underwriters of such offering, the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) if any, copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, Selling Holders (if requested by such Selling Holders) and such review and comment to be conducted with reasonable promptness Managing Underwriters, and the Company shall not file any such documents Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;Holders shall reasonably object in writing within five Business Days after the receipt thereof. In addition, the Company shall use its best efforts to reflect in each such document referenced in this paragraph so filed with the SEC such comments as each Selling Holder and the Managing Underwriters, if any, may propose.
(iib) Subject to Section 2(c), prepare and file with the SEC such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith each Registration Statement as may be necessary to keep such registration statement Registration Statement continuously effective for the applicable period specified in Section 2; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case Registration Statement during the applicable period in accordance with the terms of this Article V;
intended methods or disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented. The Company shall ensure that (iiii) furnish to each Selling Shareholder any Shelf Registration and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement any amendment thereto and of each any Prospectus forming a part thereof and any amendment and or supplement thereto complies in all material respects with the Act and the rules and regulations thereunder, (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus ii) any Shelf Registration and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which amendment thereto does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment theretonot, when the same has become it becomes effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus 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, in light of the circumstances under which they were made, not misleading and (iii) any Prospectus forming part of any Shelf Registration, and any amendment or supplement to such Prospectus, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Notify each Selling Holder and the Managing Underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus, any Prospectus supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filed with the SEC, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the 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 proceedings for such purpose, (v) of the existence of any fact or happening of any event which makes any statement of a material fact in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which would require the making of any changes in the Registration Statement or Prospectus in order that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;, and that the Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's good faith determination that a post-effective amendment to a Registration Statement is required by applicable laws, rules or regulations.
(xid) use reasonable Use its best efforts to prevent, and obtain the withdrawal of, 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 possible moment.
(e) If requested by the Selling Holders or the Managing Underwriters, if any, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Selling Holders or the Managing Underwriters, if any, and the Company mutually agree should be included therein, and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters proposed to be incorporated in such Prospectus supplement or post-effective amendment.
(f) Furnish to the Selling Holders and each Managing Underwriter, if any, without charge, at least one conformed copy of the Registration Statement or Statements and any amendment thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each Selling Holder and each Managing Underwriter, if any, in connection with any offering of Registrable Securities, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus or each amendment or supplement thereto by each of the Selling Holders and the Underwriters, if any, in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the Holders and the Managing Underwriters, if any, in connection with the registration or qualification (or exemption from such registration statement;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 Managing Underwriters reasonably requests in writing, keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement, provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in suits or to taxation in any jurisdiction where it is not then so subeject.
(xiii) otherwise Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies in addition to the SEC or authorities within the United States as may be necessary to enable each Selling Holder or the Managing Underwriters, if any, to consummate the disposition of such Registrable Securities.
(j) During the Effectiveness Period (subject to the provisions of Section 2(c)), immediately upon the existence of any fact or the occurrence of any event as a result of which (i) a Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or (ii) a Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, promptly prepare and file a post-effective amendment to each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document (such as a Current Report on Form 8-K) that would be incorporated by reference into the Registration Statement so that the Registration Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, and so that the Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder; and in the case of a post-effective amendment to a Registration Statement, use reasonable its best efforts to comply cause it to become effective as soon as practicable.
(k) Enter into such agreements (including, in the event of an Underwritten Offering, an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including, in the event of an the Underwritten Offering, those reasonably requested by the Managing Underwriters, if any, or the Holders of a majority of the Registrable Securities) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into, and if the registration is an Underwritten Registration, (i) make such representations and warranties to the Holders and the underwriters with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; (ii) use its best efforts to obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any, and the Holders of a majority of the Registrable Securities) addressed to each of the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Managing Underwriters; (iii) use its best efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or any business acquired or to be acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the Managing Underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with Underwritten Offerings, and (iv) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold, the Managing Underwriters, if any, to evidence the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement as and to the extent required thereunder.
(l) Make available for inspection by a representative of the Selling Holders, any Managing Underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by the Selling Holders or such underwriter, financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the executive officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, Managing Underwriter, attorney or accountant in connection with such disposition; provided, however, that any information that is reasonable and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such Persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of any Registration Statement or the use of any prospectus referred to in this Agreement), (iii) such information becomes generally available to the public other than as a result of disclosure or failure to safeguard by any such Person or (iv) such information becomes available to any such Person from a source other than the Company and such source is not bound by a confidentiality agreement.
(m) Comply with all applicable rules and regulations of the SEC, SEC in all material respects and make generally available to Selling Shareholders, as soon as reasonably practicable, an its securityholders earnings statement of the Company covering the period of at least twelve statements (12which need not be audited) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of a Registration Statement, which statements shall cover said 12-month periods.
(xiiin) 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 Class P Shares;
(xiv) cooperate Cooperate with the Selling Shareholders Holders and the managing underwriter Managing Underwriters, if any, 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) representing securities sold under any registration statementlegends, and enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders 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; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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 statementrequest.
(bo) 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyCa
Appears in 2 contracts
Sources: Stock Purchase Agreement (World Access Inc), Stock Purchase Agreement (World Access Inc)
Registration Procedures. (a) If and whenever In connection with the Company's obligations with respect to the Shelf Registration, the Company is required to shall use its reasonable best efforts to effect the registration in furtherance of any Registrable Securities under the Securities Act as provided sale of the Common Stock by the holders thereof in Section 5.1accordance with the intended method or methods of distribution thereof described in the Shelf Registration. In connection therewith, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously promptly as reasonably possiblemay be practicable:
(ia) prepare and file with the SEC Commission a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant with respect to the terms of this Agreement; provided, however, that Common Stock on any form for which the Company may discontinue any registration of its securities then qualifies or which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and for the Company shall not file any such documents to deem appropriate and which form shall be available for the Selling Shareholders (representing a majority disposition of the Registrable Securities included Common Stock in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersaccordance with the intended method or methods of disposition thereof;
(iib) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and for the applicable period specified in Paragraph (1) above;
(c) furnish to comply with the provisions each Purchaser which is selling Common Stock a copy of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), exhibits thereto but excluding all documents incorporated by reference therein unless specifically so requested by such Purchaser) and such reasonable number of copies of the prospectus contained included in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, Purchaser may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement the Common Stock under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder Purchasers shall reasonably request, and take any other action which and all such actions as may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Purchasers to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionCommon Stock;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) 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;
(xe) notify in writing each Selling ShareholderPurchaser, at any time when a prospectus relating thereto is required to be delivered under the Securities ActAct within the period that the Company is required to keep the registration statement effective, upon discovery that, or upon of the happening of any event as a result of which, which the prospectus included in such registration statement, 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. As promptly as practicable following any such occurrence, and, at the request of any Selling Shareholder, promptly Company shall prepare and furnish to such seller each 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 subsequent purchasers of such Registrable the Securities, such prospectus shall meet the requirements of the Securities Act and relevant state securities laws, provided that such obligation on the part of the Company shall be suspended for such period of time as the Company considers reasonably necessary and in its best interest due to circumstances then existing (but not include an untrue statement more than 30 days in any 180-day period). Each Purchaser shall furnish to the Company such information regarding each such Purchaser and its proposed method of a material fact or omit distribution of the Securities as the Company may from time to time request and as shall be required by law to effect and maintain the registration of such Securities under the Securities Act and any state a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws;
(xif) advise each Purchaser, promptly after receiving notice thereof, of any stop order issued or threatened by the Commission and use its reasonable best efforts to preventtake all actions required to prevent the entry of such stop order, and obtain or to remove it if entered;
(g) use its reasonable best efforts to cause all Common Stock including in such registration statement to be listed, by the withdrawal ofdate of the first sale of Common Stock pursuant to such registration statement, any order suspending on each securities exchange on which the effectiveness Common Stock of the Company is then listed or proposed to be listed;
(h) furnish to each Purchaser on the effective date of such registration statementstatement a signed counterpart, addressed to the Purchasers, of (i) an opinion of counsel representing the Company and reasonably satisfactory to such Purchasers that the registration statement (including each amendment or supplement thereto and prospectus included therein) complies as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations thereunder, and (ii) a "comfort" letter from the independent public accountants retained by the Company, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included or incorporated by reference in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the published rules and regulations thereunder, and covering such other financial matters of the type customarily covered by such letters;
(xiii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations the provisions of the SEC, Securities Act with respect to the disposition of all of the Common Stock covered by such registration statement in accordance with the intended methods of disposition by the Purchasers thereof set forth in such registration statement and to make generally available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Subscription Agreement (Energy Biosystems Corp), Subscription Agreement (Energy Biosystems Corp)
Registration Procedures. (a) If and whenever Whenever any Holder has requested that any Registrable Shares be registered pursuant to this Agreement, the Company is required to will use its commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under Shares in accordance with the Securities Act intended method of disposition thereof as provided in Section 5.1promptly as is practicable, Section 5.2 and Section 5.3 pursuant thereto the Company shall will as expeditiously as reasonably possible:
(ia) prepare and file with the SEC SEC, pursuant to Section 2.1.1(b) with respect to any Demand Registration, a registration statement on any appropriate form under the Securities Act with respect to effect such registration Registrable Shares and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time as far in advance as practicable before filing such registration statement or any amendments thereto (including prospectuses or supplements amendment thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) selling Holders copies of reasonably complete drafts of all such documents proposed prepared to be filed, which documents will be subject to the review and comment of such counselfiled (including exhibits), and any such review and comment Holder shall have the opportunity to be conducted with reasonable promptness object to any information contained therein and the Company shall not file will make corrections reasonably requested by such Holder with respect to such information prior to filing any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersregistration statement or amendment;
(iib) except in the case of a Shelf Registration, prepare and file with the SEC such amendments, post-effective amendments, and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than one hundred eighty (180) days (or such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(c) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with Registrable Shares subject thereto for a period ending on the terms earlier of this Article V;
(iiix) furnish to each Selling Shareholder and each underwriter, if any, of 24 months after the securities being sold by such Selling Shareholder such number of conformed copies effective date of such registration statement and (y) the date on which all the Registrable Shares subject thereto have been sold pursuant to such registration statement;
(d) furnish to each seller of each amendment Registrable Shares and supplement thereto (in each case including all exhibits), the underwriters of the securities being registered 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 prospectus), 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, documents incorporated by reference therein and such other documents as such Selling Shareholder and underwriter, if any, seller or underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such Selling Shareholderseller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.6 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);
(ive) use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement Shares under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any the managing underwriter reasonably requests (or, in the event the registration statement does not relate to an underwritten offering, as the holders of the securities being sold by a majority of such Selling Shareholder shall Registrable Shares may reasonably request, ); use its commercially reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to be kept effective; and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter each seller to consummate the disposition of the Registrable Shares owned by such seller in such jurisdictions of the Registrable Securities owned by such Selling Shareholder(provided, except however, that the Company shall will not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction subparagraph or (Cii) file a general consent to general service of process in any such jurisdiction);
(vf) promptly notify each seller and each underwriter and (if requested by any such Person) confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, and (iii) of the happening of any event which makes any statement made in a registration statement or related prospectus untrue or which requires the making of any changes in such registration statement, prospectus or documents so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(g) permit any selling Holder, which in such Holder’s sole and exclusive judgment, might reasonably be deemed to be an underwriter or 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, which in the reasonable judgment of such Holder and its counsel should be included;
(h) make reasonably available members of management of the Company, as selected by the Holders of a majority of the Registrable Shares included in such registration, for assistance in the selling effort relating to the Registrable Shares covered by such registration, including, but not limited to, the participation of such members of the Company’s management in road show presentations;
(i) otherwise use its commercially reasonable best efforts to cause such Registrable comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and make generally available to the Company’s security 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 twelve (12) month period beginning with the first day of the Company’s first fiscal quarter commencing after the effective date of a registration statement, which earnings statement shall cover said twelve (12) month period, and which requirement will be deemed to be listed on each securities exchange on which similar securities issued by satisfied if the Company are then listed andtimely files complete and accurate information on Forms 10-Q, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock MarketAct;
(vij) use reasonable best efforts if requested by the managing underwriter or any seller, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any seller reasonably requests to cause be included therein, including, without limitation, with respect to the Registrable Shares being sold by such seller, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities covered Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(k) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into a registration statement (in the form in which it was incorporated), deliver a copy of each such document to each seller;
(l) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition a supply of such Registrable Securitiescertificates;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viiim) promptly make available for inspection by any Selling Shareholderseller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder 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 (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, that, unless the disclosure of such Records may be subject is necessary to the execution by such Selling Shareholder avoid or other Inspector of correct a customary confidentiality agreement misstatement or omission in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus 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 if (i) the Company believes, after consultation with counsel for additional informationthe Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to clause (ii) such Holder of Registrable Shares requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Holder of Registrable Shares agrees that it 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;
(Cn) furnish to each seller and underwriter a signed counterpart of (i) an opinion or opinions of counsel to the issuance by Company, and (ii) a comfort letter or comfort letters from the SEC or any other Government Entity of any stop order suspending the effectiveness Company’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the sellers or managing underwriter reasonably requests;
(o) cause the Registrable Shares included in any registration statement or the initiation of any proceedings by any Person for that purpose; and
to be (Di) the receipt listed on each securities exchange, if any, on which similar securities issued by the Company are then listed, or (ii) quoted on the National Association of 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 Dealers, Inc. Automated Quotation System or the initiation or threat of any proceeding for such purposeNasdaq National Market if similar securities issued by the Company are quoted thereon;
(xp) notify provide a transfer agent and registrar for all Registrable Securities registered hereunder;
(q) cooperate with each seller and each underwriter participating in writing each Selling Shareholderthe disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, at any time Inc. (“NASD”);
(r) during the period when a the 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 promptly file all documents required to be stated therein filed with the SEC pursuant to Sections 13(a), 13(c), 14 or necessary to make 15(d) of the statements therein not misleading, and, at the request Exchange Act;
(s) notify each seller of Registrable Shares promptly of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to request by the SEC for the amending or an amendment supplementing of such registration statement or prospectus or for additional information;
(t) enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as may be necessary so that, as thereafter delivered to the purchasers are customary in connection with an underwritten registration; and
(u) advise each seller of such Registrable SecuritiesShares, such prospectus promptly after it shall not include an untrue statement receive notice or obtain knowledge thereof, 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;
(xi) use reasonable best efforts to prevent, and obtain issuance of any stop order by the withdrawal of, any order SEC suspending the effectiveness of such registration statement;
(xii) otherwise statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to comply with all applicable rules and regulations of prevent the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt issuance of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant stop order or to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) and, if so directed by the Company, deliver to the Company, obtain its withdrawal at the Company’s expense, all copies, other than permanent file copies, then in earliest possible moment if such Selling Shareholder’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 one hundred twenty (120) day period during which such registration statement must remain effective pursuant to this Agreement shall stop order should be extended by the number of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECissued.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.), Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.)
Registration Procedures. (a) If and whenever the Company is required to file a registration statement with respect to, or to use its reasonable best efforts to effect or cause the registration of of, any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall will as expeditiously as reasonably possible:
(ia) promptly prepare and file with the SEC a registration statement on an appropriate form with respect to effect such registration Registrable Securities and thereafter use 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 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 within a reasonable time before filing such a registration statement or prospectus, or any amendments thereto (including prospectuses or supplements thereto), the Company will (i) furnish to counsel for the counsel selected by the Shareholders which are including sellers of Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents proposed to be filed, which documents will be subject to the review and comment 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 and comment to of the representatives of the Company as shall be conducted with reasonable promptness and reasonably requested by the sellers of the Registrable Securities being sold available for discussion of such documents; provided, that the Company shall not file have any such documents obligation to which modify any information if the Selling Shareholders (representing Company reasonably expects that so doing would cause the registration statement to contain an untrue statement of a majority of material fact or omit to state any material fact required to be stated therein or necessary to make the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included statements therein that relates to such Selling Shareholdersnot misleading;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period not in excess of two 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, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition 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) furnish to counsel for the sellers of Registrable Securities covered by such registration statement copies of all documents proposed to be filed, which documents will be subject to the review of such counsel, (ii) fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the sellers of Registrable Securities being sold may request, and (iii) make such of the representatives of the Company as shall be reasonably requested by the sellers of the Registrable Securities being sold available for discussion of such documents; provided, that the Company shall not have any obligation to modify any information if the Company reasonably expects that so doing would cause the registration statement to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(iiic) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(ivd) use 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 Shareholder and any underwriter of the securities being sold by such Selling Shareholder 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 Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionseller;
(ve) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) seller or sellers thereof to consummate the disposition of such Registrable Securities;
(viif) in connection with an Underwritten Offering, obtain for notify each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case 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 public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholdersuch 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiig) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits Security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve practicable (12) months, but not more than eighteen (1818 months) 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;
(xiiih) (i) use its reasonable best efforts to assist Selling Shareholders who made a request 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 (ii) use its reasonable best efforts to provide a transfer agent and registrar for a third party “market maker” for such Registrable Securities covered by such registration statement not later than the Class P Shareseffective date of such registration statement;
(xivi) 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) prior to the effective date of the registration statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(l) make available upon reasonable notice and during normal business hours 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, in order to permit or facilitate the intended method or methods of distribution of such Registrable Securities, including to enable them to exercise their due diligence with regards to the distribution of the Registrable Securities;
(m) 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;
(n) 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;
(o) 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;
(p) 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;
(q) cooperate with the Selling Shareholders 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 lawlegends) 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 Selling Shareholders agent, if any, or the Holders may request and keep available and request;
(r) use its reasonable best efforts to make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate executive officers of the Company to use reasonable best efforts to facilitate all offerings, including participate with respect to preparing marketing the Holders of Registrable Securities and offering materials, preparing, making presentations at, and otherwise participating any underwriters in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case that may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as be reasonably requested by the Selling Shareholders and the underwriters Holders in the offering, marketing or selling connection with distribution of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million ;
(as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant s) obtain for delivery to the Shelf Registration Statement)), Holders of Registrable Securities being registered and to the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish underwriter or agent an opinion or opinions from counsel for the Company in writing customary form and in form, substance and scope reasonably satisfactory to such information regarding Holders, underwriters or agents and their counsel; and
(t) cooperate with each Selling Shareholder seller of Registrable Securities and each underwriter or underwriter and agent participating in the distribution disposition of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information and their respective counsel in connection with any filings 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, 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 contained herein) by an issuer of common stock in such underwriting agreementsFINRA.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (CHC Group Ltd.), Registration Rights Agreement (CHC Group Ltd.)
Registration Procedures. (a) If and whenever Whenever Shareholders request that any Registrable Security be registered pursuant to Section 2.01, 2.02 or 2.03 subject to the provisions of such Sections, the Company is required to shall use all commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided quickly as practicable, and, in Section 5.1, Section 5.2 and Section 5.3 the connection with any such request:
(a) The Company shall as expeditiously as reasonably possible:
(i) possible prepare and file with the SEC a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use all commercially reasonable best efforts to cause such filed registration statement to become and remain effective for a period of not less than one hundred eighty (180) days, or in the case of a Shelf Registration, three (3) years (or such shorter period in which all of the Registrable Securities of the Shareholders included in such registration statement shall have actually been sold thereunder). Any such registration statement shall be an automatically effective registration statement to the extent permitted by the SEC’s rules and regulations.
(b) Prior to filing a registration statement or prospectus or any amendment or supplement thereto (other than any report filed pursuant to the terms of this Agreement; provided, however, Exchange Act 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements theretois incorporated by reference therein), the Company will shall, if requested, furnish to each participating Shareholder and each underwriter, if any, of the counsel selected by the Shareholders which are including Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents registration statement as proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and thereafter the Company shall not file furnish to such Shareholder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424, Rule 430A, Rule 430B or Rule 430C under the Securities Act and such other documents as such Shareholder or underwriter reasonably may request in order to which facilitate the Selling Shareholders (representing a majority disposition of the Registrable Securities included in owned by such registrationShareholder.
(c) objectAfter the filing of the registration statement, in writingthe Company shall (i) cause the related prospectus to be supplemented by any required prospectus supplement and, on a timely basisas so supplemented, based on any disclosure included therein that relates to such Selling Shareholders;
be filed pursuant to Rule 424 under the Securities Act, (ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective 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, in each case statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained Shareholders thereof set forth in such registration statement (including each preliminary or supplement to such prospectus and any summary prospectus(iii) and promptly notify each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the holding Registrable Securities owned covered by such Selling Shareholder;registration statement of any stop order issued or threatened by the SEC or any state securities commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(ivd) The Company shall use all commercially reasonable best efforts to (i) 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 in the United States as any Selling Registering Shareholder and any underwriter of the securities being sold by holding such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by reasonably (in light of such Selling Shareholder, except that the Company shall not for any such purpose be required to ’s intended plan of distribution) requests and (Aii) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Selling Shareholder(s) thereof such Shareholder to consummate the disposition of the Registrable Securities owned by such Shareholder, provided, however, that the Company shall 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 Section 2.04(d), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction.
(e) The Company immediately shall notify each Shareholder holding such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities;, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment.
(viif) The Shareholders shall have the right to select an underwriter or underwriters in connection with an any Public Offering resulting from its exercise of a Demand Registration (including any Underwritten Takedown), if such underwriter or underwriters is reasonably acceptable to the Company. In connection with any Public Offering, obtain for each Selling Shareholder the Company shall enter into customary agreements (including an underwriting agreement in customary form) and underwriter:
(A) an opinion take all other actions as are reasonably required to expedite or facilitate the disposition of counsel for the Company, covering the matters customarily covered such Registrable Securities in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy Public Offering, including the conditions for receipt engagement of a “comfortqualified independent underwriter” letter specified in Statement on Auditing Standards No. 72connection with the qualification of the underwriting arrangements with FINRA.
(g) The Company shall make available, an “agreed upon procedures” letter) signed by at the independent public accountants who have certified offices where normally kept, during the Company’s financial statements included in such registration statement;
(viii) promptly make available normal business hours, for inspection by any Selling Shareholder, Shareholder who certifies to the Company that it has a current intention to sell and any underwriter participating or which is considering participating in any disposition pursuant to any a registration statement, statement being filed by the Company pursuant to this Section 2.04 and any attorney, accountant or other agent or representative professional retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), ) as shall be reasonably necessary or desirable to enable them any of the Inspectors to exercise their its due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information reasonably requested by any such Inspector in connection with such registration statement statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (yi) be the Inspector reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, believes the disclosure of such Records may is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Shareholder agrees that information obtained by it as a result of such inspections shall be subject deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Registrable Securities unless and until such information is made generally available to the execution by public. Each Shareholder further agrees that, upon learning that disclosure of such Selling Shareholder or other Inspector of a customary confidentiality agreement Records is sought in a form which is reasonably satisfactory court of competent jurisdiction, it shall give notice to the Company and allow the Company;, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(ixh) promptly notify in writing The Company shall use commercially reasonable efforts to furnish to each Selling Registering Shareholder and the underwritersto each such underwriter, if any, a signed counterpart, addressed to such Shareholder or underwriter, of (i) an opinion or opinions of counsel to the Company, and (ii) a comfort letter or comfort letters from the Company’s independent public accountants and (iii) any opinion of a “qualified independent underwriter”, each in customary form and covering such matters of the following events:kind customarily covered by opinions or comfort letters, as the case may be, as a majority of such Shareholders or the managing underwriter therefor reasonably requests.
(Ai) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the The Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, SEC and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company or such other document covering the a period of at least twelve (12) months, but not more than eighteen beginning within three (183) months, beginning with the first day of the Company’s first full quarter months after the effective date of such the registration statement, which earnings statement shall satisfy satisfies the provisions requirements of Section 11(a) of Rule 158 under the Securities Act and Rule 158 thereunder;Act.
(xiiij) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, promptly to furnish in writing to the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete or amend the and such other information as may be legally 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, 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 contained herein) by an issuer of common stock in such underwriting agreementsregistration.
(ck) Each Selling Shareholder agrees that that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x2.04(e), such Selling Shareholder forthwith shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 2.04(e), and, if so directed by the Company, such Shareholder shall deliver to the Company, at the Company’s expense, Company all copies, other than any permanent file copies, copies then in such Selling Shareholder’s possession possession, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 2.04(a)) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x2.04(e) to the date when all the Company shall make available to such Selling Shareholders shall receive such a Shareholder prospectuses supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 2.04(e).
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(el) The Company shall use its commercially reasonable best efforts to take list all action necessary Registrable Securities covered by such registration statement on any securities exchange or quotation system on which the Common Shares are then listed or traded.
(m) The Company shall have appropriate upon officers of the request Company (i) prepare and make presentations at any “road shows” and before analysts and (ii) otherwise use their reasonable efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or selling of any Investor Shareholder to ensure that Class A Shareholders arethe Registrable Securities.
(n) The Company shall designate a transfer agent and registrar for the class or classes or series of securities which includes such Registrable Securities and obtain a CUSIP number for the same, from and after in each case not later than the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated registration is declared effective by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelySEC.
Appears in 2 contracts
Sources: Registration Rights Agreement (Centerline Holding Co), Registration Rights Agreement (Centerline Holding Co)
Registration Procedures. (a) If and whenever Whenever the Company is required to effect a registration hereunder (or, as applicable, requested to assist in connection with a sale under a shelf registration statement), the Company shall use its reasonable best efforts to effect the registration and sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided promptly as practicable, and, in Section 5.1connection with any such request, Section 5.2 and Section 5.3 the as applicable:
(a) The Company shall as expeditiously as reasonably possible:
(i) practicable prepare and file with the SEC a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use its reasonable best efforts to (i) cause such filed registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, 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 within a reasonable time before filing and (ii) promptly update such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein so that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, anduntil all of the Registrable Securities included in such registration statement shall have actually been sold thereunder; provided that, at the request of any Selling ShareholderHolder, promptly prepare and the intended method of distribution relating to the sale of the Registrable Securities to be registered thereunder shall provide for individual Holders to be named as selling stockholders under such registration statement.
(b) Prior to filing a registration statement or prospectus or any amendment or supplement thereto, the Company shall, if requested, furnish to each Holder and each underwriter, if any, of the Registrable Securities covered by such seller a reasonable registration statement copies of such registration statement as proposed to be filed, and thereafter the Company shall furnish to each Holder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as a Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder. The Holders shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to the Holders, and the Company shall use its reasonable best efforts to comply with such request, provided, however, that the Company shall not have any obligation so to modify any information if the Company reasonably expects that so doing would cause the prospectus to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) After the filing of the registration statement, the Company shall (i) cause the related prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in such registration statement or supplement to such prospectus and (iii) promptly notify the Holders of any stop order issued or an amendment threatened by the SEC or any state securities commission and take all reasonable best efforts to prevent the entry of such prospectus stop order or to remove it if entered.
(d) The Company shall use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions in the United States as the Holders reasonably (in light of the Holders’ intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable a Holder to consummate the disposition of the Registrable Securities owned by such Holder, provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.9(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(e) The Company shall immediately notify the Holders, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, misleading and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available promptly prepare and make available to the Company’s transfer agent prior to Holders and file with the effectiveness of SEC any such registration statement a supply of such certificates; andsupplement or amendment.
(xvf) The Company shall select an underwriter or underwriters in connection with any Underwritten Offering; provided that, in the case event of an Underwritten Offeringa Demand Registration requested by the L▇▇▇▇▇ Holders or the Vestar Holders, cause such underwriter or underwriters shall be selected by the appropriate officers of L▇▇▇▇▇ Holders or the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingsVestar Holders, as the case may be, with the consent of the Company (which consent shall not be unreasonably withheld). In connection with any Underwritten Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take all such other information meetings actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Underwritten Offering, including, to the extent necessary, the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with the FINRA.
(g) Subject to the execution of confidentiality agreements satisfactory in form and substance to the Company in the exercise of its good faith judgment, the Company will give to the Holders, their counsel and accountants (i) reasonable and customary marketing activities organized by access to its books and records, that, in the underwritersopinion of the Board are pertinent corporate documents, and otherwise using their (ii) such opportunities to discuss the business of the Company with its directors, officers, employees, counsel and the independent public accountants who have certified its financial statements, as shall be appropriate, in the reasonable judgment of counsel, to the Holders, to enable them to exercise its due diligence responsibility.
(h) The Company shall use its 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant furnish to the Shelf Registration Statement)), the reference Holders and to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each such underwriter, if any, a signed counterpart, addressed to furnish the Holders or such underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the kind customarily covered by opinions or comfort letters, as the case may be, as the Holder and the underwriters reasonably request.
(i) Each Holder shall promptly furnish in writing to the Company such information regarding each Selling Shareholder or underwriter and such Holder that is reasonably necessary for the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete and such other information regarding such Holder as may be legally required 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters advisable in connection with such offering 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 such underwriting agreementsregistration.
(cj) Each Selling Shareholder 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 5.6(a)(x2.9(e), such Selling Shareholder Holder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Holder’s Registrable Securities until such Selling ShareholderHolder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 2.9(e), and, if so directed by the Company, deliver to the Company, at the Company’s expense, such Holders shall destroy all copies, other than any permanent file copies, copies then in such Selling ShareholderHolder’s possession possession, of the most recent prospectus current covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 2.9(a)) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x2.9(e) to the date when all such Selling Shareholders the Company shall receive such make available to the Holders a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 2.9(e).
(dk) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the The Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) shall use its reasonable best efforts to file with list all Registrable Securities covered by such registration statement on any securities exchange or quotation system on which any of the SEC in a timely manner all reports and other documents required Registrable Securities are then listed or traded.
(l) The Company shall have appropriate officers of the Company under the Exchange Act, (i) prepare and make presentations at any time after “road shows” and before analysts and rating agencies, as the Company has become subject case may be, (ii) take other actions to such reporting requirements; and
obtain ratings for any Registrable Securities and (iii) furnish otherwise use their reasonable best efforts to any holder so long cooperate as reasonably requested by the holder owns underwriters in the offering, marketing or selling of the Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(em) The Company shall use its reasonable best efforts to take all action other steps necessary or appropriate upon to effect the request registration of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as Registrable Securities contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyhereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Lovell Minnick Partners LLC), Registration Rights Agreement (Vestar Capital Partners Iv Lp)
Registration Procedures. (a) If In connection with the Company's obligations pursuant to Sections 4.1 and whenever 4.2 hereof, the Company is required to will use all reasonable best efforts to effect the such registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possiblewill promptly:
(ia) prepare and file with the SEC a as soon as practicable after request for registration hereunder the requisite registration statement to effect such registration and thereafter use all reasonable best efforts to cause such registration statement to become effective and to remain continuously effective pursuant until the earlier to occur of (x) 180 days following the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities date on which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement is declared effective or any amendments thereto (including prospectuses or supplements thereto), y) the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority termination of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;offering being made thereunder.
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities shares of Common Stock and Common Stock Equivalents, as the case may be, covered by such registration statementstatement until such Common Stock and Common Stock Equivalents, in each as the case may be, has been sold or such lesser period of time as the Company, any seller of such Common Stock and Common Stock Equivalents, as the case may be, or any underwriter is required under the Securities Act to deliver a prospectus in accordance with the terms intended methods of this Article Vdisposition by the sellers of such Common Stock and Common Stock Equivalents, as the case may be, set forth in such registration statement or supplement to such prospectus;
(iiic) furnish to each Selling Shareholder Stockholder and each Permitted Transferee which owns shares of Common Stock or Common Stock Equivalents, as the case may be, covered by such registration statement (the "SELLING STOCKHOLDERS") and the managing underwriter, if any, at least one executed original of the securities being sold by such Selling Shareholder registration statement and 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents Act as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned be requested by such Selling ShareholderStockholder;
(ivd) use all reasonable best efforts (i) to register or qualify such Registrable Securities all shares of Common Stock or Common Stock Equivalents, as the case may be, covered by such registration statement under such other the securities laws or "blue sky sky" laws of such jurisdictions where an exemption is not available as any the Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder Stockholders shall reasonably request, (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 may be reasonably necessary or advisable to enable such the Selling Shareholder and underwriter Stockholders to consummate the disposition in such jurisdictions of such Common Stock and Common Stock Equivalents, as the Registrable Securities owned by such Selling Shareholdercase may be, except 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 is not but for the requirements of this clause (iv) be obligated to be then so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a take any action which would subject it to general consent to service of process in any such jurisdiction;
(e) notify the Selling Stockholders and the managing underwriter, if any, promptly, and confirm such advice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to a registration statement or related prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a registration statement or the initiation of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the registered securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (v) of the happening of any event or information becoming known which requires the making of any changes in a registration statement or related prospectus so that such documents will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (vi) of the Company's reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification of any of the registered securities for sale in any jurisdiction, at the earliest possible moment;
(g) upon the occurrence of any event contemplated by clause (e)(v) above, prepare 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 of the securities being sold thereunder, such prospectus will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(h) use reasonable its best efforts to furnish to the Selling Stockholders a signed counterpart, addressed to the Selling Stockholders and the underwriters, if any, of (A) an opinion of counsel for the Company, and (B) a "comfort" letter, signed by the independent public accountants who have certified the Company's financial statements included or incorporated by reference in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountant's 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 underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the accountant's letter, such other financial matters, and in the case of the legal opinion, such other legal matters, as the Selling Stockholders or the underwriters may reasonably request;
(i) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make available to the Selling Stockholders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder no later than 90 days after the end of any 12-month period beginning after the effective date of a registration statement pursuant to which shares of Common Stock and Common Stock Equivalents, as the case may be, are sold, which statement shall cover such 12-month period;
(j) cooperate with the Selling Stockholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing shares of Common Stock and Common Stock Equivalents, as the case may be, to be sold; and enable such shares of Common Stock and Common Stock Equivalents, as the case may be, to be in such denominations and registered in such names as the Selling Stockholders or the managing underwriters, if any, may request at least two Business Days prior to any sale of shares of Common Stock or Common Stock Equivalents, as the case may be, to the underwriters;
(k) use its best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued the shares of Common Stock and Common Stock Equivalents, as the case may be, covered 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 reasonable best efforts to cause such Registrable Securities covered by such applicable registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(sStockholder(s) thereof or the underwriters, if any, to consummate the disposition of such Registrable Securitiesshares of Common Stock and Common Stock Equivalents, as the case may be;
(viil) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion cause all shares or units of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant Common Stock or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingsCommon Stock Equivalents, as the case may be, and other information meetings and customary marketing activities organized covered by the underwritersregistration statement to be listed on each securities exchange, if any, on which securities of such class, series and otherwise using their reasonable best efforts to cooperate as reasonably form issued by the Company, if any, are then listed if requested by the Selling Shareholders managing underwriters, if any, or the holders of a majority of the shares or units of Common Stock or Common Stock Equivalents, as the case may be, covered by the registration statement and entitled hereunder to be so listed;
(m) cooperate and assist in any filings required to be made with the underwriters National Association of Securities Dealers, Inc. (the "NASD") and in the offering, marketing or selling performance of any due diligence investigation by any underwriter (including any "qualified independent underwriter" that is required to be retained in accordance with the rules and regulations of the Registrable SecuritiesNASD); providedand
(n) as soon as practicable prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after initial filing of the registration statement) provide copies of such document to counsel to the Selling Stockholders and to the managing underwriters, that in if any, and make the case Company's representatives available for discussion of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined such document and consider in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant making such changes in such document prior to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companyfiling thereof as counsel for such Selling Stockholders or underwriters may reasonably request. The Company may require each Selling Shareholder and each underwriter, if any, Stockholder to furnish to the Company in writing such information regarding each such Selling Shareholder or underwriter Stockholder and the distribution of such Registrable Securities securities by such Selling Stockholder as the Company may from time to time reasonably request in writing in order 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, 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 comply with the covenants and agreements of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Securities Act. The Selling Shareholder agrees that Stockholders severally agree that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x4.3(e)(ii), such Selling Shareholder shall (iii), (iv), (v) or (vi) hereof, they will forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable such registration statement and of any shares of Common Stock or Common Stock Equivalents, as the case may be, covered by such registration statement or prospectus relating thereto until such Selling Shareholder’s their receipt of the copies of the supplemented or amended prospectus contemplated relating to such registration statement or prospectus or until they are advised in writing by the Company that the use of the applicable prospectus may be resumed (and the period of such discontinuance shall be excluded from the calculation of the period specified in clause (x) of Section 5.6(a)(x4.3(a)) and, if so directed by the Company, will deliver to the Company, Company (at the Company’s 's expense, except as otherwise provided in Section 4.1(c)) all copies, other than permanent file copies, copies then in such Selling Shareholder’s possession their possession, of the prospectus current covering such securities in effect at the time of receipt of such notice relating notice. The Selling Stockholders agree to such Registrable Securities. In the event furnish the Company shall give such noticea signed counterpart, any applicable one hundred twenty (120) day period during which addressed to the Company and the underwriters, if any, of an opinion of counsel for the Selling Stockholders covering substantially the same matters with respect to such registration statement must remain effective pursuant to this Agreement shall be extended by (and the number prospectus included therein) as are customarily covered in opinions of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) selling stockholder's counsel delivered to the date when all underwriters in underwritten public offerings of securities (and dated the dates such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(dopinions are customarily dated) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by legal matters as the Company as such holder or the underwriters may request in connection with the sale of Registrable Securities without registrationreasonably request.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Subscription Agreement (Cluett Peabody & Co Inc /De), Stockholders' Agreement (Cluett Peabody & Co Inc /De)
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 Section 5.1Sections 5.1 and 5.2, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC Commission a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; 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 thereto; provided, further further, that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders holders of Registrable Securities which are including Registrable Securities to be included in such registration (“"Selling Shareholders”Holders") copies of all such documents proposed to be filed, which documents will be subject to the review of (and comment of shall reasonably take into account the comments of) such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholderspromptness;
(ii) prepare and file with the SEC Commission such amendments, post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement until such time as all of such securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement;
(iii) furnish to each Selling Shareholder Holder and each underwriter, if any, of the securities being sold by such Selling Shareholder 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 (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderseller;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder Holder and any underwriter of the securities being sold by such Selling Shareholder Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderHolder, 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 (ivSection 5.5(a)(iv) be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) to file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock ExchangeNYSE, the American Stock Exchange NYSE MKT LLC 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 Shareholder(sHolder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder Holder and underwriter:
(A1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten secondary offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwritersselling shareholders, and
(B2) a “"comfort” " letter (or, in the case of any such Person which that 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 's financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling ShareholderHolder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder seller or underwriter (collectively, the “"Inspectors”"), all financial and other records, records and 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 (x) supply all information reasonably requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, that, unless the disclosure of such Records may be subject is necessary to avoid or correct a misstatement or omission in the execution by registration statement or the release of such Selling Shareholder Records is ordered pursuant to a subpoena or other Inspector order from a court of competent jurisdiction, the Company shall not be required to provide any information under this Section 5.5(a)(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 or other privilege, or violate a customary confidentiality obligation, 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 in a form which is on terms reasonably satisfactory acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Shareholder Holder and the underwriters, if any, of the following events:
(A1) the filing effectiveness of the any such registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B2) any request by the SEC or any other Government Entity Commission for amendments or supplements to the registration statement or the prospectus or for additional informationinformation and when same has been filed and become effective;
(C3) the issuance by the SEC or any other Government Entity 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
(D4) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling ShareholderHolder, 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 ShareholderHolder, 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders Holders and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) ), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders sellers may request and keep available and make available to the Company’s 's transfer agent prior to the effectiveness of such registration statement a supply of such certificatescertificates as necessary or appropriate;
(xiii) use its reasonable best efforts to take or cause to be taken all other actions, and do and cause to be done all other things, necessary or reasonably advisable in the opinion of Selling Holders' counsel to effect the registration of such Registrable Securities; and
(xvxiv) take such other actions as the Selling Holders or the underwriters reasonably request, upon reasonable prior notice, in order to facilitate the case disposition of an Underwritten Offeringsuch Registrable Securities, cause including causing the appropriate officers management of the Company to use reasonable best efforts prepare for and participate in due diligence and drafting sessions and in "road show" presentations and other customary selling efforts; provided that notwithstanding anything to facilitate all offeringsthe contrary herein, including with respect the Company shall not be obligated to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating participate in any “"road shows” show" pursuant to this Agreement within 18 (domestic and foreigneighteen) and analysts and rating agencies calls and meetings, as months of any other "road show" in which the case may be, and other information meetings and customary marketing activities organized by Company has participated or will be participating at the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested request of the Selling Holders or underwriters selected by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the CompanyHolders. The Company may require each Selling Shareholder Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder 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, if requested by the underwriter, Company 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 contained herein) by an issuer of common stock shares in underwriting agreements with respect to secondary offerings of common shares for the account of, or on behalf of, selling shareholders. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall (i) furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold, in such underwriting agreementsdenominations as requested and (ii) instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Shareholder Holder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x5.5(a)(ix), such Selling Shareholder Holder shall forthwith discontinue such Selling Shareholder’s Holder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x5.5(a)(ix) and, if so directed by the Company, deliver to the Company, at the Company’s 's expense, all copies, other than permanent file copies, then in such Selling Shareholder’s 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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x5.5(a)(ix) to the date when all such Selling Shareholders Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECCommission.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Registration Procedures. (a) If and whenever Whenever Shareholders request that any Registrable Securities be registered pursuant to Section 2.1 or Section 2.2, subject to the provisions of such Sections, the Company is required to shall use commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided expeditiously as reasonably practicable, and, in Section 5.1, Section 5.2 and Section 5.3 the connection with any such request:
(a) The Company shall as expeditiously as reasonably possible:
(i) practicable prepare and file with the SEC a registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use commercially reasonable best efforts to cause such filed registration statement to become and remain effective pursuant for a period of not less than 180 days, or in the case of a Shelf Registration Statement, one year (or, in each case, such shorter period in which all of the Registrable Securities of the Participating Shareholders included in such registration statement shall have actually been sold thereunder or cease to be Registrable Securities).
(b) Prior to filing a registration statement or prospectus (including any Free Writing Prospectus) or any amendment or supplement thereto, the terms Company shall, if requested, furnish to each Participating Shareholder and each underwriter, if any, of this Agreement; the Registrable Securities covered by such registration statement copies of such registration statement as proposed to be filed, and thereafter the Company shall furnish to such Shareholder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act or any Free Writing Prospectus and such other documents as such Shareholder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Shareholder. Each Participating Shareholder shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Shareholder and the Company shall use commercially reasonable efforts to comply with such request, provided, however, that the Company may discontinue shall not have any registration obligation so to modify any information if the Company reasonably expects that so doing would cause the prospectus to contain an untrue statement of its securities which are a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not Registrable Securities at any time prior to misleading.
(c) After the effective date filing of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto)statement, the Company will furnish to shall (i) cause the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed related prospectus to be filedsupplemented by any required prospectus supplement, which documents will be subject to the review and comment of such counseland, and such review and comment as so supplemented, to be conducted with reasonable promptness and filed pursuant to Rule 424 under the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) objectAct, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective 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, in each case statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained Participating Shareholders set forth in such registration statement (including each preliminary or supplement to such prospectus and any summary prospectus(iii) and promptly notify each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Participating Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the holding Registrable Securities owned covered by such Selling Shareholder;registration statement of any stop order issued or threatened by the SEC or any state securities commission and use commercially reasonable efforts to prevent the entry of such stop order or to remove it if entered.
(ivd) The Company shall use commercially reasonable best efforts to (i) 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 in the United States as any Selling Participating Shareholder and any underwriter of the securities being sold by holding such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by reasonably (in light of such Selling Shareholder, except that the Company shall not for any such purpose be required to ’s intended plan of distribution) requests in writing and (Aii) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Selling Shareholder(s) thereof such Shareholder to consummate the disposition of the Registrable Securities owned by such Shareholder, provided that the Company shall not be required to (a) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.4(d), (b) subject itself to taxation in any such jurisdiction or (c) consent to general service of process in any such jurisdiction.
(e) The Company shall immediately notify each Participating Shareholder holding such Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus or a Free Writing Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities;, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment.
(viif) The Company shall have the right to select the underwriter or underwriters in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in any underwritten offerings and such Public Offering other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, than in the case of a Shelf Take Down, which shall be governed by Section 3.2(a). In connection with any Public Offering, the Company and the Participating Shareholders shall enter into customary agreements (including an underwriting agreement in customary form) and take all other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Person which does not satisfy Public Offering required by this Agreement, including the conditions for receipt engagement of a “comfortqualified independent underwriter” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letterconnection with the qualification of the underwriting arrangements with the FINRA.
(g) signed by the independent public accountants who have certified Upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company’s financial statements included in such registration statement;
(viii) promptly , the Company shall make available for inspection by any Selling Shareholder, Participating Shareholder and any underwriter participating in any disposition pursuant to any a registration statement, statement being filed by the Company pursuant to this Section 2.4 and any attorney, accountant or other agent or representative professional retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), ) as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information reasonably requested by any such Inspector Inspectors in connection with such registration statement statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (yi) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is required pursuant to applicable law or regulation or judicial process. Each Participating Shareholder agrees that information obtained by it as a result of such inspections shall be subject deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Company Securities unless and until such information is made generally available to the execution by public. Each Participating Shareholder further agrees that, upon learning that disclosure of such Selling Shareholder or other Inspector of a customary confidentiality agreement Records is sought in a form which is reasonably satisfactory court of competent jurisdiction, it shall give notice to the Company and allow the Company;, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(ixh) promptly notify in writing The Company shall use commercially reasonable efforts to furnish to each Selling Shareholder and the underwriterssuch underwriter, if any, a signed counterpart, addressed to such underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the following events:kind customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter therefor reasonably requests.
(Ai) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the The Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of or such registration statement, which earnings statement other document that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;.
(xiiij) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling such Participating Shareholder and each underwriter, if any, promptly to furnish in writing to the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete or amend the and such other information as may be legally 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, 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 contained herein) by an issuer of common stock in such underwriting agreementsregistration.
(ck) Each Selling such Participating Shareholder agrees that that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x2.4(e), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 2.4(e), and, if so directed by the Company, such Shareholder shall deliver to the Company, at the Company’s expense, Company all copies, other than any permanent file copies, copies then in such Selling Shareholder’s possession possession, of the prospectus current any offering materials covering such Registrable Securities at the time of receipt of such notice relating to such Registrable Securitiesnotice. In the event If the Company shall give such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 2.4(a)) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x2.4(e) to the date when all the Company shall make available to such Selling Shareholders shall receive such Shareholder a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 2.4(e).
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(el) The Company shall use its commercially reasonable best efforts to take list all action necessary or appropriate upon the request of Registrable Securities covered by such registration statement on any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) securities exchange on which any action inconsistent with the foregoing. Without limiting the generality of the foregoingRegistrable Securities are then listed.
(m) With respect to offerings reasonably expected to have aggregate gross proceeds of at least $75,000,000, the Company shall comply with all applicable securities use commercially reasonable efforts to support the marketing of the Registrable Securities (including participation in “road shows” and appearing before analysts and rating agencies), taking into account the Company’s business needs; it being understood by the parties to this Agreement that the phrase “taking into account the Company’s business needs” may permit the non-participation of the Company’s management in a “road show” if the requisite traveling or other laws demands of a “road show”, in connection the good faith determination of the Company, would interfere with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request management of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyCompany’s business.
Appears in 2 contracts
Sources: Registration Rights Agreement (ALTERRA CAPITAL HOLDINGS LTD), Agreement and Plan of Amalgamation (Max Capital Group Ltd.)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and or Section 5.3 5.3, the Company shall as expeditiously as reasonably possiblepracticable:
(i) prepare and file with the SEC Commission a registration statement to effect such registration in accordance with the intended method or methods of distribution of such securities and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this AgreementArticle V; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further further, that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Demand Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) ), their counsel and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed, which documents will be subject to the review and reasonable comment of such counsel, and other documents reasonably requested by such review counsel, including any comment letter from the Commission, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such registration statement and comment each prospectus included therein and such other opportunities to be conducted with conduct a reasonable promptness and investigation within the Company shall not file any such documents to which the Selling Shareholders (representing a majority meaning of the Registrable Securities included in such registration) objectAct, in writingincluding reasonable access to the Company’s books and records, on a timely basisofficers, based on any disclosure included therein that relates to such Selling Shareholdersaccountants and other advisors;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article V, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) if requested by the lead managing underwriter(s), if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as 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 5.6(a)(iii) that are not, in the opinion of counsel for the Company, in compliance with Applicable Law;
(iv) furnish to each the Selling Shareholder Shareholders and each underwriter, if any, of the securities being sold by such Selling Shareholder Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits)thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder Shareholders and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling ShareholderShareholders;
(ivv) use reasonable best efforts to register or qualify or cooperate with the Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such jurisdictions as any the Selling Shareholder Shareholders and any underwriter of the securities being sold by such Selling Shareholder Shareholders shall reasonably request, and to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any other action which may be reasonably necessary or reasonably advisable to enable such Selling Shareholder Shareholders and underwriter underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderShareholders, 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 (ivv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(vvi) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable best efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vivii) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(viiviii) use reasonable best efforts to 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;
(ix) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and use its reasonable best efforts to take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the lead managing underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Offering (A) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company and its Subsidiaries, and the registration statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers in underwritten offerings, and, if true, confirm the same if and when requested, (B) if an underwriting agreement has been entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 5.9 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the holders of a majority of the Registrable Securities being sold and (C) deliver such documents and certificates as reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the lead managing underwriters(s), if any, to evidence the continued validity of the representations and warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(x) in connection with an Underwritten Offering, use reasonable best efforts to obtain for each the Selling Shareholder Shareholders and underwriter:
underwriter(s) (A) an opinion opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder Shareholders and underwriters, and
underwriters and (B) a “comfort” letter letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements and, to the extent required, any other financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(viiixi) promptly make available for inspection by any the Selling ShareholderShareholders, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained in connection with such offering by any such Selling Shareholder Shareholders or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties instruments of the Company (collectively, the “Records”), as shall be reasonably necessary necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees of the Company and its Subsidiaries to (x) supply all information in each case reasonably requested by any such Inspector representative, underwriter, attorney, agent or accountant in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, thatthat the Company shall not be required to provide any information under this clause (xi) if (A) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client or other applicable privilege that was applicable to such information or (B) if either (1) 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 (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless prior to furnishing any such information with respect to clause (1) or (2) such Selling Shareholder requesting such information enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Shareholder agrees that it will, upon learning that disclosure of such Records may be subject is sought in a court of competent jurisdiction or by another Governmental Authority, give notice to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(ixxii) as promptly as practicable notify in writing each the Selling Shareholder and the underwriters, if any, of the following events:
: (A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
; (B) any request by the SEC Commission or any other Government Entity U.S. or state governmental authority for amendments or supplements to the registration statement or the prospectus or for additional information;
; (C) the issuance by the SEC or any other Government Entity 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
(D) 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 sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xE) notify in writing each Selling Shareholder, if at any time when a prospectus relating thereto is required the representations and warranties of the Company contained in any mutual agreement (including any underwriting agreement) contemplated by Section 5.6(a)(ix) cease to be delivered under the Securities Act, true and correct in any material respect; and (F) upon discovery that, or upon becoming aware of the happening of any event as a result that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which, the prospectus included any changes in such registration statement, as then prospectus or documents so that, in effectthe case of the 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, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of any Selling Shareholder, promptly prepare and furnish to such seller Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or 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 were made, not misleading;
(xixiii) use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations , or the lifting of any suspension of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest reasonable practicable date, except that the Company covering 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 period requirements of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
this clause (xiii) use its reasonable best efforts be obligated to assist Selling Shareholders who made be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a request general consent to the Company to provide for a third party “market maker” for the Class P Sharesservice of process in any such jurisdiction;
(xiv) cooperate with the Selling Shareholders and the lead managing underwriter underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable lawApplicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter underwriter(s) or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates;
(xv) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(xvxvi) in the case of an Underwritten Offering, cause the have appropriate officers of the Company to use prepare and make presentations at a reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any customary number of “road shows” (domestic and foreign) and before analysts and rating agencies calls and meetingsagencies, as the case may be, and other information meetings and customary marketing activities reasonably organized by the underwriters, underwriters and otherwise using their use its 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million .
(as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. b) The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyReg
Appears in 2 contracts
Sources: Shareholder Support Agreement (Ampco Pittsburgh Corp), Shareholders Agreement (J M SMUCKER Co)
Registration Procedures. (a) If Subject to section 2.1(a), if and ----------------------- whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1sections 2.1 and 2.2, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possible:
(i) prepare and file with the SEC a Commission the requisite registration statement to effect such registration (including such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms for a period of this Agreement; at least 120 days, provided, however, however that -------- ------- the Company may discontinue any registration of its securities which are not Registrable Securities (and, under the circumstances specified in section 2.2(a), its securities which are Registrable Securities) at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of at least 120 days and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement until the earlier of such time as all of such securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement or such other time as is required by the Securities Act;
(iii) permit any holder of Registrable Securities which holder, in its reasonable judgment, might be deemed to be an underwriter or 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, which in the reasonable judgment of such holder and its counsel should be included;
(iv) furnish to each Selling Shareholder seller of Registrable Securities covered by such registration statement and each Requesting Holder and each underwriter, if any, of the securities being sold by such Selling Shareholder 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 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 pursuant to Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder 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 Selling Shareholderrequest;
(ivv) use reasonable its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other state securities laws or blue sky laws of such jurisdictions as any Selling Shareholder seller thereof and any underwriter of the securities being sold by such Selling Shareholder seller and any Requesting 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 Shareholder seller and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling Shareholderseller, 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 subsection (ivv) be obligated to be so qualified, (B) subject itself qualified or to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(vvi) use reasonable best efforts furnish to cause such each seller of Registrable Securities and each Requesting Holder a signed counterpart, addressed to be listed on each securities exchange on which similar securities issued by the Company are then listed andsuch seller, 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 reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder Requesting Holder and the underwriters, if any, of the following eventsof:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (McKesson Corp), Registration Rights Agreement (Amerisource Distribution Corp)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.11.2, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleshall:
(i) prepare and file with the SEC Commission a registration statement to effect such registration in accordance with the intended method or methods of distribution of such securities and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this AgreementArticle I; 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders Company Stockholders which are including Registrable Securities in such registration (the “Selling ShareholdersStockholders”), their counsel (which shall be one counsel for all Selling Stockholders, as designated by the Company Stockholders holding a majority of the Registrable Securities to be sold) and the lead managing underwriter(s) and their counsel, if any, copies of all such documents proposed to be filed, which documents will be subject to the review and reasonable comment of such underwriter(s) counsel, and other documents reasonably requested by such review and underwriter(s) counsel, including any comment to be conducted with reasonable promptness and letter from the Commission. The Company shall not file any such documents registration statement or prospectus or any amendments or supplements thereto with respect to a Shelf Offering to which the Selling Shareholders (representing a majority of Company Stockholders and their counsel or the Registrable Securities included in such registration) lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates unless, in the reasonable opinion of the Company, such filing is necessary to such Selling Shareholderscomply with Applicable Law;
(ii) prepare and file with the SEC Commission such amendments amendments, supplements and supplements free writing prospectuses to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article I, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) if requested by the lead managing underwriter(s), if any, or any of the Company Stockholders, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such Company Stockholders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as 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 1.5(a)(iii) that are, in the opinion of counsel for the Company, in violation of Applicable Law;
(iv) furnish to each Selling Shareholder Stockholder and each underwriter, if any, of the securities being sold by such Selling Shareholder Stockholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits)thereto, 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) (each, a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such each Selling Shareholder Stockholder and each underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of Stockholder; provided, that notwithstanding the securities being sold by such Selling Shareholder shall reasonably requestforegoing, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally provide any documents or information to do business an underwriter or broker, sales agent or placement agent if such underwriter or broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualifiedan underwriter or broker, (B) subject itself to taxation in any such jurisdiction sales agent or (C) file a general consent to service of process in any such jurisdictionplacement agent, as applicable;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each the New York Stock Exchange (or another national securities exchange on which similar securities issued by the Company Shares 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 reasonable best efforts to provide and cause such to be maintained 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 from and after a date not later than the Selling Shareholder(s) thereof to consummate the disposition effective date of such Registrable Securitiesregistration statement;
(vii) in connection with an Underwritten Offering, enter into, and perform its obligations under, an underwriting agreement in form, scope and substance as is customary in underwritten offerings and in connection therewith deliver such documents and certificates as are reasonably requested by the Company Stockholders, their counsel and the lead managing underwriter(s), if any, to evidence the continued validity of the representations and warranties made therein and to evidence compliance with any customary conditions contained in the underwriting agreement (all of the above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder);
(viii) use reasonable best efforts to obtain for each the Selling Shareholder Stockholders and underwriter:
underwriter(s) (A) an opinion opinion(s) of counsel for the Company, covering the matters customarily covered in corporate opinions and negative assurance letters requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) and updates thereof signed by the independent public accountants who have certified the Company’s financial statements included and, to the extent required, any other financial statements included, or incorporated by reference, in such registration statement, covering the matters customarily covered in “comfort” letters in connection with Underwritten Offerings dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(viiiix) promptly make available for inspection by any each Selling Shareholder, Stockholder or any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained in connection with such offering by any such Selling Shareholder Stockholder or underwriter (collectively, the “Inspectors”), all such financial and other records, pertinent corporate documents and properties instruments of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to verify the accuracy of the information in such registration statement and exercise their due diligence responsibility, and cause the Company’s officers, directors and employees of the Company and its Subsidiaries (and use its reasonable best efforts to (xcause its auditors) to participate in customary due diligence calls and to supply all information in each case reasonably requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, thatthat the Company shall not be required to provide any information under this clause (ix) if (A) 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 (B) if either (1) 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 (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing (email being sufficient); unless prior to furnishing any such information with respect to clause (1) or (2), such Inspector enters into a customary confidentiality agreement with the Company, on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Stockholder agrees that it will, upon learning that disclosure of such Records may be subject is sought in a court of competent jurisdiction or by another Governmental Authority, give notice to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to Company and allow the Company, at the Company’s expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(ixx) as promptly as practicable notify in writing each (email being sufficient) the Selling Shareholder Stockholders and the underwriters, if any, of the following events:
: (A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
; (B) any request by the SEC Commission or any other Government Entity U.S. or state Governmental Authority for amendments or supplements to the registration statement or the prospectus or for additional information;
; (C) the issuance by the SEC or any other Government Entity 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
(D) 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 sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
; and (xE) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening Company’s knowledge of the occurrence of any event as a result that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which, the prospectus included any changes in such registration statement, as then prospectus or documents so that, in effectthe case of the 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, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, at the request of any Selling ShareholderStockholder, promptly prepare and furnish to such seller Selling Stockholder a reasonable number of copies of a supplement to or an amendment of such registration statement or 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 the light of the circumstances under which they were made, not misleading;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, of any order suspending the effectiveness of such 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 reasonable practicable date, 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 (x) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(xii) otherwise use reasonable best efforts to comply cooperate with all applicable rules and regulations each of the SEC, Selling Stockholders and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of each underwriter participating in the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date disposition of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Registrable Securities Act and Rule 158 thereundertheir respective counsel in connection with any filings required to be made with FINRA;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statementin an underwritten public offering, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the have appropriate officers of the Company to use prepare and make presentations at a reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any number of “road shows” (domestic and foreign) and analysts and rating agencies calls and meetingsbefore analysts, as the case may be, and other information meetings and customary marketing activities reasonably organized by the underwriters, underwriters and otherwise using their use its reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders Company Stockholders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xiv) notify each Selling Stockholder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed;
(xv) cause all such Registrable Securities registered hereunder to be listed on a globally recognized securities exchange or on the securities exchange on which the Registrable Securities are then listed;
(xvi) use its reasonable best efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the Selling Stockholders or the Underwriters; providedprovided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, that unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; and
(xvii) give quarterly notice to each Selling Stockholder of the aggregate number of outstanding shares of the Company following disclosure of such in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith relevant periodic report required to be filed by the Requesting Shareholders (or Company with the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to United States Securities and Exchange Commission under the Shelf Registration Statement))Exchange Act, which, for the reference to “the appropriate officers” avoidance of doubt, shall be deemed to include the Chief Executive Officer and the President of the Company. ’s Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as applicable.
(b) The Company may require each Selling Shareholder Stockholder and each underwriter, if any, to furnish the Company in writing such information regarding each such Selling Shareholder Stockholder or such underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing (email being sufficient) to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, statement in the event that the offering of Registrable Securities is order to be made by or through an underwriter, the Company, 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 conform with the covenants and agreements requirements of the Company contained herein) by an issuer of common stock in such underwriting agreementsApplicable Law.
(c) Each Selling Shareholder Stockholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D) or (E) of Section 5.6(a)(x1.5(a)(x), such Selling Shareholder Stockholder shall forthwith discontinue such Selling ShareholderStockholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling ShareholderStockholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x1.5(a)(x), or until it is advised in writing (email being sufficient) and, if so directed by the CompanyCompany that the use of the applicable prospectus may be resumed, deliver and has received copies of any additional or supplemental filings that are incorporated or deemed to the Company, at the Company’s expense, all copies, other than permanent file copies, then be incorporated by reference in such Selling Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECprospectus.
(d) With a view to making available to the holders of Registrable Securities Company Stockholders the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form)Act, the Company shall:
(i) use reasonable best efforts to make and keep public information available, as those terms are understood and defined in Rule 144 or any similar or analogous rule under the Securities Act;
(ii) use reasonable best efforts to file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after when the Company has become is subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall otherwise use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of provide such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), Company Stockholder with such customary assistance as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyis reasonably requested.
Appears in 2 contracts
Sources: Registration Rights Agreement (NRG Energy, Inc.), Registration Rights Agreement (NRG Energy, Inc.)
Registration Procedures. (a) If and whenever Whenever the Holders have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a Shelf Offering, the Company is required to shall use 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 Section 5.1intended method of disposition thereof, Section 5.2 and Section 5.3 pursuant thereto the Company shall as expeditiously as reasonably possible:
(i) in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, prepare and file with the SEC Securities and Exchange Commission (subject to the availability of required financial information) a registration statement statement, and all amendments and supplements thereto and related prospectuses, with respect to effect such registration Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, (provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time least five Business Days before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will shall furnish to the counsel selected by the Shareholders which are including Holder(s) initiating a Demand Registration or, in all other cases, the Holders representing a Majority of the Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents proposed to be filed, which documents will shall be subject to the review and comment of such counsel);
(ii) notify each Holder of Registrable Securities of (A) the issuance by the Securities and Exchange Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, and such review and comment to be conducted with reasonable promptness and (B) the receipt by the Company shall not file or its counsel of any such documents notification with respect to which the Selling Shareholders (representing a majority suspension of the qualification of the Registrable Securities included for sale in any jurisdiction or the initiation or threatening of any proceeding for such registrationpurpose and (C) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersthe effectiveness of each registration statement filed hereunder;
(iiiii) prepare and file with the SEC Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but in any event not before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement during such period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such registration statement;
(iiiiv) furnish to each Selling Shareholder and each underwriter, if any, seller of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), Registrable Securities thereunder 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 ), each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free 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, Prospectus and such other documents as such Selling Shareholder 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 Selling Shareholderseller;
(ivv) use 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 such jurisdictions as any Selling Shareholder seller reasonably requests and do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except seller (provided 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 (iv) be obligated to be so qualifiedsubparagraph, (B) consent to general service of process in any such jurisdiction or (C) subject itself to taxation in any such jurisdiction jurisdiction);
(vi) notify each seller of such Registrable Securities (A) promptly after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (B) promptly after receipt thereof, of any request by the Securities and Exchange Commission for the amendment or supplementing of such registration statement or prospectus or for additional information and (C) file at any time when a general consent prospectus relating thereto is required to service be delivered under the Securities Act, of process 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, subject to Section 2(f), at the request of any such jurisdictionseller, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(vvii) use reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are not so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on a securities exchange and, without limiting the New York Stock Exchangegenerality of the foregoing, the American Stock Exchange or the NASDAQ Stock Marketto arrange for at least two market markers to register as such with respect to such Registrable Securities with FINRA;
(viviii) use reasonable efforts to provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(ix) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Holders representing 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, combination of shares, recapitalization or reorganization);
(x) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(xi) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Demand Registration or Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(xii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158;
(xiii) to the extent that a Holder, in its sole and exclusive judgment, might be deemed to be an underwriter of any Registrable Securities or a controlling person of the Company, permit such Holder to participate in the preparation of such registration or comparable statement and allow such Holder to provide language for insertion therein, in form and substance satisfactory to the Company, which in the reasonable judgment of such Holder and its counsel should be included;
(xiv) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or the issuance of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Shares included in such registration statement for sale in any jurisdiction, use reasonable efforts promptly to obtain the withdrawal of such order;
(xv) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) sellers thereof to consummate the disposition of such Registrable Securities;
(viixvi) in connection cooperate with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion the Holders 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 Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder managing underwriter or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwritersagent, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear bearing any restrictive legends unless required under applicable lawlegends) representing securities to be sold under any the registration statement, statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such Holders may request;
(xvii) cooperate with each Holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Selling Shareholders may request Registrable Securities and keep available and their respective counsel in connection with any filings required to be made with FINRA;
(xviii) use its reasonable best efforts to make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate executive officers of the Company to use reasonable best efforts to facilitate all offerings, including participate with respect to preparing marketing the Holders of Registrable Securities covered by the registration statement and offering materials, preparing, making presentations at, and otherwise participating any underwriters in any “road shows” or other selling efforts that may be reasonably requested by the Holders in connection with the methods of distribution for the Registrable Securities;
(domestic and foreignxix) and analysts and rating agencies calls and meetings, as in the case may beof any underwritten Public Offering, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their use its reasonable best efforts to cooperate obtain one or more cold comfort letters from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling Holders representing a Majority of the Registrable Securities; provided, that Securities being sold reasonably request;
(xx) in the case of any underwritten Public Offering, use its reasonable best efforts to provide a legal opinion of the Company’s outside counsel, dated the closing date of the Public Offering, in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters and the Holders of such Registrable Securities being sold;
(xxi) if the Company files an Underwritten Offering involving anticipated gross proceeds of Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(xxii) if the Company does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(xxiii) if the Automatic Shelf Registration Statement has been outstanding for at least $500 million three (as determined in good faith by 3) years, at the Requesting Shareholders (or end of the Demand Shareholders who have elected third year, file a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Company is required to effect an Underwritten Offering pursuant re-evaluate its WKSI status the Company determines that it is not a WKSI, use its reasonable efforts to refile the Shelf Registration Statement))Statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the reference period during which such registration statement is required to “be kept effective.
(b) Any officer of the appropriate officers” Company who is a Holder agrees that if and for so long as he or she is employed by the Company or any Subsidiary thereof, he or she shall be deemed to include participate fully in the Chief Executive Officer sale process in a manner customary and reasonable for persons in like positions and consistent with his or her other duties with the Company and in accordance with applicable law, including the preparation of the registration statement and the President preparation and presentation of the Company. any road shows.
(c) The Company may require each Selling Shareholder and each underwriterHolder requesting, if anyor electing to participate in, any registration to furnish the Company in writing such information regarding each Selling Shareholder or underwriter such Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing and as is required to complete or amend the information required by effect any 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECregistration.
(d) With a view If the Holders or any of their respective Affiliates seek to making available to the holders effectuate one or more distribution(s), sale(s) or other form of transfer(s) of all or part of their respective Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule to their respective direct or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form)indirect equityholders, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts subject to file any applicable lock-ups, work with the SEC foregoing persons to facilitate such distribution in a timely the manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Companyreasonably requested, and such other reports distributee shall have the right to become a party to this Agreement by an executed joinder to this Agreement in the form of Exhibit A attached hereto (a “Joinder”) and documents so filed or furnished by thereby have all of the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer rights of such Class P Shares (to distributing Holder under this Agreement, other than the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality Demand Registration rights of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyLead Investor.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vita Coco Company, Inc.), Registration Rights Agreement (Vita Coco Company, Inc.)
Registration Procedures. (a) If and whenever the Company Corporation is required to use its reasonable best efforts to effect cause the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall Corporation will, as expeditiously as reasonably possible:
(i) (A) with respect to any registration under Section 2(a), prepare and and, in any event within 20 days of the date on which the Corporation first received a request from KRH pursuant to Section 2(a)(i), file with the SEC a registration statement with respect to effect such registration Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to become effective within 90 days of the initial filing, and remain effective pursuant (B) with respect to any registration under Section 2(b) and subject to the terms Corporation’s rights set forth in Section 2(b), use its reasonable best efforts to file with the SEC a registration statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective within 90 days of this Agreementthe initial filing, and (C) with respect to any registration under Section 2(c), use its reasonable best efforts to file with the SEC a registration statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective within 90 days of the initial filing; 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 within a reasonable time before filing such a registration statement or prospectus or any amendments or supplements thereto (including prospectuses documents that would be incorporated or supplements thereto), deemed to be incorporated therein by reference) the Company Corporation will furnish to the counsel selected by the Shareholders which are including holders holding Registrable Securities in covered by such registration (“Selling Shareholders”) statement, counsel for the holders of the Registrable Securities being registered and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counselholders, such special counsel and such underwriters, and such review and comment to be conducted with reasonable promptness and the Company shall Corporation will not file any such registration statement or amendment thereto or any prospectus or any supplement thereto (excluding such documents that, upon filing, will be incorporated or deemed to be incorporated by reference therein) to which the Selling Shareholders (representing holders of a majority of the Registrable Securities included in covered by such registration) registration statement or the managing underwriter, if any, shall reasonably object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective in accordance with Section 2(a) 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, in each case statement during such period in accordance with the terms intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that before filing a registration statement or prospectus, or any amendments or supplements thereto in accordance with Section 2(d)(i) or this Article VSection 2(d)(ii), the Corporation will furnish to counsel for the holders of the Registrable Securities being registered copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iii) furnish to each Selling Shareholder and each underwriter, if any, holder of the securities Registrable Securities being sold by such Selling Shareholder registered 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderholder;
(iv) use 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 Shareholder and any underwriter each holder of the securities Registrable Securities being sold by such Selling Shareholder registered 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 Shareholder and underwriter holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderholder, 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 where, but for the requirements of this clause (iv) Section 2(d)(iv), it would not be obligated to be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) file a general to consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use its 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 Governmental Authorities as may be necessary to enable the Selling Shareholder(s) holders thereof to consummate the disposition of such Registrable Securities;
(viivi) in connection with an Underwritten Offering, obtain for notify each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case holder 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 public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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, Corporation’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 Shareholdersuch holder, promptly prepare and furnish to such seller holder 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 holders 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiivii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, SEC and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve practicable (12) months, but not more than eighteen (1818 months) 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;
(xiiiviii) use its reasonable best efforts to assist Selling Shareholders who made cause all Registrable Securities covered by such registration statement to be (a) listed on each stock exchange or automated quotation system, if any, on which securities issued by the Corporation of the same class are then listed or, if no such securities issued by the Corporation are then so listed, on the New York Stock Exchange (the “NYSE”) or another nationally stock exchange, if the securities qualify to be so listed or (b) on the Nasdaq Stock Market of the Nasdaq Global Market (“NASDAQ”) or another nationally recognized automated quotation system, if the securities qualify to be so quoted;
(ix) as needed, (a) engage an appropriate transfer agent and provide the transfer agent with printed certificates for the Registrable Securities in a request form eligible for deposit with The Depository Trust Company and (b) provide a CUSIP number for the Registrable Securities;
(x) 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 2(g) hereof, and take such other actions as holders 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;
(xi) obtain a “cold comfort” letter or letters from the Corporation’s independent public accountants in customary form and covering matters of the type customarily covered by “cold comfort” letters as the holders of a majority of shares of such Registrable Securities shall reasonably request;
(xii) make available for inspection by any holder 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 holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Corporation, and cause all of the Corporation’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;
(xiii) 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 (a) when the registration statement, or any post-effective amendment to the Company registration statement, shall have become effective, or any supplement to provide the prospectus or any amendment to the prospectus shall have been filed, (b) of the receipt of any comments from the SEC, (c) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for a third party “market maker” additional information, and (d) 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 prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the Class P Sharesinstitution or threatening of any proceedings for any of such purposes;
(xiv) 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 prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(xv) 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;
(xvi) cooperate with the Selling Shareholders 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 lawlegends) 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 Selling Shareholders 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; andrequest;
(xvxvii) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use its reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available obtain for delivery to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act being registered and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration underwriter or pursuant to a registration on Form S-3 (agent an opinion or any successor opinions from counsel for the Corporation in customary form and in form), the Company shall:
(i) make substance and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject scope reasonably satisfactory to such reporting requirementsholders, underwriters or agents and their counsel; and
(iiixviii) furnish to any cooperate with each holder so long as of Registrable Securities being registered and each underwriter or agent participating in the holder owns disposition of such Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request their respective counsel in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause filings required to be taken (including through the Company’s transfer agent) any action inconsistent made with the foregoing. Without limiting the generality of the foregoingNYSE, the Company shall comply with all applicable securities NASDAQ or any other laws in connection with the foregoing, and take all reasonable action necessary stock exchange or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares automated quotation system and the Class P Shares, as they exist immediatelyNASD.
Appears in 2 contracts
Sources: Registration Rights Agreement (RHI Entertainment, Inc.), Registration Rights Agreement (RHI Entertainment, Inc.)
Registration Procedures. (a) If and whenever Best Commercial Efforts. Whenever the Company is required to use reasonable best efforts to effect holders of Registrable Securities ----------------------- request the registration of any Registrable Securities under pursuant to this Agreement, the Company shall use its best commercial efforts to register and to permit the sale of the Registrable Securities Act as provided in Section 5.1accordance with the intended method of disposition. To carry out this obligation, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC SEC, but in any event no later than 90 days (or such shorter period as required by Section 3(c)(ii) of this Agreement) after receipt of a request to file a registration statement (subject to effect such Section 3(f)), a registration statement on the appropriate form ------------ and thereafter use reasonable its best commercial efforts to cause such the 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 within a reasonable time effective. At least three days before filing such a registration statement or prospectus or at least one business day before filing any amendments thereto (including prospectuses or supplements thereto)thereto including Registrable Securities, the Company will furnish to the counsel selected by of the Shareholders which are including holders of a Majority of the Registrable Securities in such registration (“Selling Shareholders”) being registered copies of all such documents proposed to be filedfiled for that counsel's review and approval, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company approval shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersbe unreasonably withheld or delayed;
(ii) notify immediately each seller of Registrable Securities of any stop order threatened or issued by the SEC and take all actions reasonably required to prevent the entry of a stop order or if entered to have it rescinded or otherwise removed;
(iii) prepare and file with the SEC such amendments and supplements to such the registration statement and the corresponding prospectus used in connection therewith necessary to keep the registration statement effective for 90 days (or such longer period as required by Section 3(c)(ii) of this Agreement) or such shorter period as may be necessary required to keep such sell all Registrable Securities covered by the registration statement effective statement; and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such the registration statement, in statement during each case period in accordance with the terms sellers' intended methods of this Article Vdisposition as set forth in the registration statement;
(iiiiv) furnish to each Selling Shareholder and each underwriter, if any, seller of Registrable Securities a sufficient number of copies of the securities being sold by such Selling Shareholder 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 corresponding prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act), and such other documents as such Selling Shareholder and underwriter, if any, a seller may reasonably request in order to facilitate the public sale or other disposition of the seller's Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionSecurities;
(v) use reasonable its best commercial efforts to cause such register or qualify the Registrable Securities under securities or blue sky laws of jurisdictions in the United States of America as any seller requests and will do any and all other acts and things that may be necessary or advisable to be listed on each securities exchange on which similar securities issued by enable the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts seller to cause such consummate the disposition of the seller's Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock MarketSecurities;
(vi) use reasonable its best commercial efforts to cause such the Registrable Securities covered by such the registration statement to be registered with or approved by such other those governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof each seller to consummate the disposition of such its Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for notify each Selling Shareholder and underwriter:
(A) an opinion seller of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling ShareholderSecurities, 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 the prospectus included in such registration statement, as then in effect, includes or any document incorporated therein by reference 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 Shareholder, promptly and will 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 prospectus or any such Registrable Securities, such document incorporated therein by reference so that thereafter the 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;
(xiviii) use reasonable best efforts cause all registered Registrable Securities covered by such registration to preventbe listed on each securities exchange, if any, on which similar securities issued by the Company are then listed;
(ix) provide an institutional transfer agent and obtain registrar and a CUSIP number for all Registrable Securities on or before the withdrawal of, any order suspending effective date of the effectiveness of such registration statement;
(x) enter into such customary agreements (including an underwriting agreement in customary form) and take all other actions in connection with those agreements as the holders of the Registrable Securities b eing registered or the underwriters, if any, reasonably request to expedite or facilitate the disposition of the Registrable Securities;
(xi) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to the registration statement, and any attorney, accountant, or other agent of any seller of at least 5% of the securities being sold pursuant to the Registration Statement or underwriter, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company's officers, directors, and employees to supply all information reasonably requested by any seller, underwriter, attorney, accountant, or agent in connection with the registration statement; provided that an appropriate confidentiality agreement is executed by any seller, underwriter, attorney, accountant or other agent;
(xii) otherwise in connection with any underwritten offering, obtain a "cold comfort" letter from the Company's independent public accountants in customary form and covering those matters customarily covered by "cold comfort" letters as the holders of the Registrable Securities being registered or the managing underwriters reasonably request (and the letter shall be addressed to holders of the Registrable Securities);
(xiii) furnish, at the request of any holder of Registrable Securities being registered an opinion of the counsel representing the Company for the purposes of the registration, in the form and substance customarily given to underwriters in an underwritten public offering and satisfactory to the counsel representing the holders of Registrable Securities being registered, addressed to the underwriters, if any, and to the holders of Registrable Securities being registered; and
(xiv) use reasonable its best commercial efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning complying with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to covering the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds ------------- period of at least $500 million (as determined in good faith by twelve months, but not more than eighteen months, beginning with the Requesting Shareholders (or first month after the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President effective date of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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 statementRegistration 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Open Port Technology Inc), Registration Rights Agreement (Open Port Technology Inc)
Registration Procedures. (a) If and whenever Whenever any Holder has requested that any Registrable Shares be registered pursuant to this Agreement, the Company is required to will use its commercially reasonable best efforts to effect the registration and the sale of any such Registrable Securities under Shares in accordance with the Securities Act intended method of disposition thereof as provided in Section 5.1promptly as is practicable, Section 5.2 and Section 5.3 pursuant thereto the Company shall will as expeditiously as reasonably possible:
(ia) prepare and file with the SEC SEC, pursuant to Section 2.1.1(b) with respect to any Demand Registration, a registration statement on any appropriate form under the Securities Act with respect to effect such registration Registrable Shares and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; providedeffective, however, provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time as far in advance as practicable before filing such registration statement or any amendments thereto (including prospectuses or supplements amendment thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) selling Holders copies of reasonably complete drafts of all such documents proposed prepared to be filed, which documents will be subject to the review and comment of such counselfiled (including exhibits), and any such review and comment Holder shall have the opportunity to be conducted with reasonable promptness object to any information contained therein and the Company shall not file will make corrections reasonably requested by such Holder with respect to such information prior to filing any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersregistration statement or amendment;
(iib) except in the case of a Shelf Registration, prepare and file with the SEC such amendments, post-effective amendments, and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than one hundred eighty (180) days (or such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(c) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with Registrable Shares subject thereto for a period ending on the terms earlier of this Article V;
(iiix) furnish to each Selling Shareholder and each underwriter, if any, of 24 months after the securities being sold by such Selling Shareholder such number of conformed copies effective date of such registration statement and (y) the date on which all the Registrable Shares subject thereto have been sold pursuant to such registration statement;
(d) furnish to each seller of each amendment Registrable Shares and supplement thereto (in each case including all exhibits), the underwriters of the securities being registered 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 prospectus), 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, documents incorporated by reference therein and such other documents as such Selling Shareholder and underwriter, if any, seller or underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such Selling Shareholderseller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.6 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);
(ive) use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement Shares under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any the managing underwriter of reasonably requests (or, in the securities being sold by such Selling Shareholder shall event the registration statement does not relate to an underwritten offering, as the Majority Holders may reasonably request, ); use its commercially reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to be kept effective; and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter each seller to consummate the disposition of the Registrable Shares owned by such seller in such jurisdictions of the Registrable Securities owned by such Selling Shareholder(provided, except however, that the Company shall will not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction subparagraph or (Cii) file a general consent to general service of process in any such jurisdiction);
(vf) promptly notify each seller and each underwriter and (if requested by any such Person) confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, and (iii) of the happening of any event which makes any statement made in a registration statement or related prospectus untrue or which requires the making of any changes in such registration statement, prospectus or documents so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(g) permit any selling Holder, which in such Holder’s sole and exclusive judgment, might reasonably be deemed to be an underwriter or 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, which in the reasonable judgment of such Holder and its counsel should be included;
(h) make reasonably available members of management of the Company, as selected by the Majority Holders, for assistance in the selling effort relating to the Registrable Shares covered by such registration, including, but not limited to, the participation of such members of the Company’s management in road show presentations;
(i) otherwise use its commercially reasonable best efforts to cause such Registrable comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and make generally available to the Company’s security 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 twelve (12) month period beginning with the first day of the Company’s first fiscal quarter commencing after the effective date of a registration statement, which earnings statement shall cover said twelve (12) month period, and which requirement will be deemed to be listed on each securities exchange on which similar securities issued by satisfied if the Company are then listed andtimely files complete and accurate information on Forms 10-Q, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock MarketAct;
(vij) use reasonable best efforts if requested by the managing underwriter or any seller, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any seller reasonably requests to cause be included therein, including, without limitation, with respect to the Registrable Shares being sold by such seller, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities covered Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(k) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into a registration statement (in the form in which it was incorporated), deliver a copy of each such document to each seller;
(l) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition a supply of such Registrable Securitiescertificates;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viiim) promptly make available for inspection by any Selling Shareholderseller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder 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 (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs)statement; provided, however, that, unless the disclosure of such Records may be subject is necessary to the execution by such Selling Shareholder avoid or other Inspector of correct a customary confidentiality agreement misstatement or omission in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus 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 if (i) the Company believes, after consultation with counsel for additional informationthe Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to clause (ii) such Holder of Registrable Shares requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Holder of Registrable Shares agrees that it 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;
(Cn) furnish to each seller and underwriter a signed counterpart of (i) an opinion or opinions of counsel to the issuance by Company, and (ii) a comfort letter or comfort letters from the SEC or any other Government Entity of any stop order suspending the effectiveness Company’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the sellers or managing underwriter reasonably requests;
(o) cause the Registrable Shares included in any registration statement or the initiation of any proceedings by any Person for that purpose; and
to be (Di) the receipt listed on each securities exchange, if any, on which similar securities issued by the Company are then listed, or (ii) quoted on the National Association of 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 Dealers, Inc. Automated Quotation System or the initiation or threat of any proceeding for such purposeNasdaq National Market if similar securities issued by the Company are quoted thereon;
(xp) notify provide a transfer agent and registrar for all Registrable Securities registered hereunder;
(q) cooperate with each seller and each underwriter participating in writing each Selling Shareholderthe disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, at any time Inc. (“NASD”);
(r) during the period when a the 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 promptly file all documents required to be stated therein filed with the SEC pursuant to Sections 13(a), 13(c), 14 or necessary to make 15(d) of the statements therein not misleading, and, at the request Exchange Act;
(s) notify each seller of Registrable Shares promptly of any Selling Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to request by the SEC for the amending or an amendment supplementing of such registration statement or prospectus or for additional information;
(t) enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as may be necessary so that, as thereafter delivered to the purchasers are customary in connection with an underwritten registration; and
(u) advise each seller of such Registrable SecuritiesShares, such prospectus promptly after it shall not include an untrue statement receive notice or obtain knowledge thereof, 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;
(xi) use reasonable best efforts to prevent, and obtain issuance of any stop order by the withdrawal of, any order SEC suspending the effectiveness of such registration statement;
(xii) otherwise statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to comply with all applicable rules and regulations of prevent the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt issuance of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant stop order or to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) and, if so directed by the Company, deliver to the Company, obtain its withdrawal at the Company’s expense, all copies, other than permanent file copies, then in earliest possible moment if such Selling Shareholder’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 one hundred twenty (120) day period during which such registration statement must remain effective pursuant to this Agreement shall stop order should be extended by the number of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SECissued.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Cal Dive International, Inc.), Registration Rights Agreement (Cal Dive International, Inc.)
Registration Procedures. (a) If and whenever Upon the Company is required request of at least a majority of the holders of Registrable Securities for the Resale Registration pursuant to this Agreement, AdStar shall use 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 Section 5.1intended method of disposition thereof, Section 5.2 and Section 5.3 the Company pursuant thereto AdStar shall as expeditiously as reasonably possible:
(i) 3.1 prepare and file with the SEC a registration statement (it being agreed that AdStar would intend to effect use Form S-3 or Form S-2, if available) with respect to such registration Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, (provided that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such a registration statement or prospectus or any amendments thereto (including prospectuses or supplements thereto), the Company will AdStar shall furnish to the counsel selected by the Shareholders which are including holders of a majority of the Registrable Securities in covered by such registration (“Selling Shareholders”) statement copies of all such documents proposed to be filed, which documents will shall be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority );
3.2 notify each holder of Registrable Securities of the Registrable Securities included in effectiveness of such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) registration statement and 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 accurate and effective and until the earlier of (i) the date on which all Registrable Securities have been sold or (ii) all such unsold Registrable Securities may be sold in any single 90-day period pursuant to comply with the provisions Rule 144 of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;Act.
(iii) 3.3 furnish to each Selling Shareholder and each underwriter, if any, holder of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by the such Selling Shareholderseller;
(iv) 3.4 use 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 Shareholder seller reasonably requests and do any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholderseller (provided, except however, that the Company AdStar shall not for any such purpose be required to (Aa) 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 (iv) be obligated to be so qualifiedsubsection, (Bb) subject itself to taxation in any such jurisdiction or (Cc) file a general consent to general service of process in any such jurisdiction);
(v) use reasonable best efforts 3.5 notify each holder of 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 such seller, AdStar shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the sellers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
3.6 cause all such Registrable Securities to be listed on each securities exchange or NASDAQ market on which similar securities issued by the Company AdStar are then listed andlisted;
3.7 make available for inspection by any seller of Registrable Securities and any attorney, if no accountant or other agent retained by any such seller, all financial and other records, pertinent corporate documents and properties of AdStar, and cause AdStar's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller or any such attorney, accountant or agent in connection with such registration statement;
3.8 otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of AdStar's first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
3.9 upon the request of any holder of Registrable Securities, insert language into the registration statement to the effect that the holding by such holder of such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities is not to be listed on construed as a recommendation by such holder of the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Marketinvestment quality of AdStar's securities covered thereby and that such holding does not imply that such holder shall assist in meeting any future financial requirements of AdStar;
(vi) 3.10 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 reasonable of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, AdStar shall use its best efforts promptly to obtain the withdrawal of such order; and
3.11 use 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 Shareholder(s) sellers thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Adstar Com Inc), Registration Rights Agreement (Adstar Com Inc)
Registration Procedures. (a) If and whenever 6.1 In the case of each registration effected by the Company is required pursuant to this Agreement, the Company will keep each Holder advised in writing as to the initiation of each registration and as to the completion thereof. The Company agrees to use reasonable its best efforts to effect or cause such registration to permit the sale of the Registrable Securities covered thereby by the Holders thereof in accordance with the intended method or methods of distribution thereof described in such registration statement. In connection with any registration of any Registrable Securities under the Securities Act Securities, and except as otherwise provided in Section 5.1Article 5 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleshall, at its expense:
(ia) prepare and file with the SEC Commission a registration statement with respect to effect such registration Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement filed to become and remain effective pursuant to effective;
(b) maintain the terms effectiveness of this Agreement; provided, however, such registration statement until the earlier of (A) five years after the date 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish filed pursuant to the counsel selected Section 3.1 is first declared effective by the Shareholders Commission, (B) the date on which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in covered by a registration statement may be sold by the Holders pursuant to Rule 144(k) or (C) such registration) object, in writing, on time as all of the Registrable Securities have been publicly sold pursuant to a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersregistration statement;
(iic) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith included therein as may be necessary to keep effect and maintain the effectiveness of such registration statement effective as may be required by the applicable rules and to comply with the provisions regulations of the Securities Act with respect Commission and the instructions applicable to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies form of such registration statement and furnish to the Holders of each amendment and supplement thereto (in each case including all exhibits), such number of the Registrable Securities covered thereby copies of any such supplement or amendment prior to this being used and filed with the prospectus contained Commission;
(d) promptly notify the Holders of Registrable Securities to be included in such a registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of hereunder, the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwritersales or placement agent, if any, may reasonably request in order to facilitate therefor and the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any managing underwriter of the securities being sold by such Selling Shareholder shall reasonably requestsold, and take any other action which may be reasonably necessary or advisable to enable confirm such Selling Shareholder and underwriter to consummate the disposition advice in such jurisdictions of the Registrable Securities owned by such Selling Shareholderwriting, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by 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 Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus included therein or any prospectus amendment or supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
, (B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
, (DC) 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 or (xD) notify in writing each Selling Shareholderif, to the Company’s knowledge, it shall be the case, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery thatthat such registration statement or prospectus, or upon any document incorporated by reference in any of the happening of any event as a result of whichforegoing, 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 misleadingmisleading in light of the circumstances then existing;
(e) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement or any post-effective amendment thereto or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction at the earliest practicable date;
(f) furnish to each Holder of Registrable Securities to be included in such registration statement hereunder, each placement or sales agent, if any, therefor and each underwriter, if any, thereof a conformed copy of such registration statement, each such amendment and supplement thereto (in each case excluding all exhibits and documents incorporated by reference) and such number of copies of the registration statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such holder, agent or underwriter, as the case may be) of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the Securities Act, as such Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder sold by such agent or underwritten by such underwriter and to permit such Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act;
(g) use its best efforts to (A) register or qualify the Registrable Securities to be included in such registration statement under such other securities laws or blue sky laws of such states of the United States or the District of Columbia to be designated by the Holders of a majority of such Registrable Securities participating in such registration and each placement or sales agent, if any, therefor and underwriter, if any, thereof, as any Holder and each underwriter, if any, of the securities being sold shall reasonably request (provided, that the Company shall not be required to use its best efforts to register or qualify the Registrable Securities in more than 15 such jurisdictions unless the expenses thereof are borne by the Holders requesting such efforts), (B) keep such registrations or qualifications in effect and comply with such laws at all times during the period described in Section 6.1(b) above and (C) take any and all such actions as may be reasonably necessary or advisable to enable such Holder, agent, if any, and underwriter to consummate the disposition in such jurisdictions of such Registrable Securities; provided, however, that in order to fulfill the foregoing obligations under this Section 6.1(g), the Company shall not (unless otherwise required to do so in any jurisdiction) be required to (1) qualify generally to do business as a foreign company or a broker-dealer, (2) execute a general consent to service of process or (3) subject itself to taxation; and
(h) furnish, at the request of any Selling Shareholdera majority of the Holders participating in the registration, promptly prepare and furnish to on the date that 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 Registrable Securities are delivered to the purchasers underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and if permitted by applicable accounting standards, to the Holders requesting registration of Registrable Securities.
6.2 The Company may require each Holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Holder and such Holder’s method of distribution of such Registrable Securities as the Company may from time to time reasonably request in writing. Each such Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by such Holder to the Company or of the occurrence of any event in either case as a result of which any prospectus relating to such registration contains or would contain an untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omits to state any material fact regarding such Holder or the distribution of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Holder or the distribution of such Registrable Securities, such prospectus shall not include an untrue statement of or a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in light of the circumstances then existing.
(xi) use reasonable best efforts to prevent, and obtain 6.3 Each of the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to Holders will comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling disposition of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters included in connection with such offering 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 such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) and, if so directed filed by the Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 2 contracts
Sources: Registration Rights Agreement (Sutura, Inc.), Registration Rights Agreement (Sutura, Inc.)
Registration Procedures. (a) If and whenever Whenever any Registrable Securities are to be registered pursuant to Section 2, the Company is required to will use reasonable best efforts diligence to effect the registration of any such Registrable Securities under in accordance with the intended method of disposition thereof as quickly as practicable and in accordance with the provisions of Section 2. In connection with any offering of Registrable Securities Act as provided in Section 5.1pursuant to the Agreement, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC Commission a registration statement that includes the Registrable Securities requested to effect such registration be included therein in accordance with Section 2 and thereafter use reasonable best efforts diligence 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 are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time least five Business Days before filing such a registration statement or prospectus or any amendments thereto (amendment or supplement thereto, including prospectuses or supplements thereto)documents incorporated by reference therein, the Company will furnish to the counsel selected by Holder, and the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) underwriters, if any, draft copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, the Holder and such review and comment to be conducted with reasonable promptness underwriters, and the Company shall will not file any registration statement or prospectus or amendment or supplement thereto (including such documents incorporated by reference) to which the Selling Shareholders (representing Holder or the underwriters with respect to such Registrable Securities, if any, shall reasonably object within five days of receipt of any of such documents; and provided further, however, that if the Company, in the case of a majority Piggyback Registration, despite the reasonable objection of the Holder, desires to proceed with the registration of its shares, the Holder may withdraw the Registrable Securities from being included in such registration) objectoffering, using its good-faith efforts to minimize delay caused by such withdrawal, and the Company may then, notwithstanding anything to the contrary in writingthe immediately preceding proviso, on a timely basis, based on any disclosure included therein proceed with such offering; the Company and the Holder acknowledge that relates such withdrawal by the Holder will delay such offering for as much time as is necessary to amend such Selling Shareholdersregistration statement or prospectus to reflect the withdrawal of such Registrable Securities from such offering;
(iib) prepare and file with the SEC Commission such amendments and supplements post- effective amendments to such the registration statement and the prospectus used in connection therewith as may be necessary to keep the registration statement effective for a period of six months (or such shorter period which will terminate when all Registrable Securities covered by such registration statement effective have been sold or withdrawn, but not prior to the expiration of the 90-day 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 covered by such registration statement, in each case statement during the applicable period in accordance with the terms intended methods of this Article Vdisposition by the sellers thereof set forth in such registration statement or supplement to the prospectus; the Company shall not be deemed to have complied with its obligations hereunder to keep a registration statement effective during the applicable period if it voluntarily takes any action that would result in the prevention of the Holder from selling such Registrable Securities during that period unless such action is required under applicable law;
(iiic) furnish to each Selling Shareholder the Holder and each underwriterthe underwriter or underwriters, if any, of the securities being sold by without charge, such Selling Shareholder such reasonable number of conformed copies of such the registration statement and of each any post-effective amendment thereto and supplement thereto (in each case including all exhibits), such reasonable 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 any amendments or supplements thereto, and any other prospectus filed under Rule 424 under documents incorporated by reference therein, as the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned being sold by such Selling Shareholder;
the Holder (iv) it being understood that the Company consents to the use reasonable best efforts to register of the prospectus and any amendment or qualify such supplement thereto by the Holder and the underwriter or underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the prospectus or any amendment or supplement thereto);
(d) notify the Holder at any time when a prospectus relating thereto is required to be delivered under the 1933 Act, when the Company becomes aware of the happening of any event as a result of which the prospectus included in such registration statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) use reasonable diligence to cause all Registrable Securities included in such registration statement to be listed, by the date of the first sale of Registrable Securities pursuant to such registration statement, on each securities exchange on which the Common Stock of the Company is then listed or proposed to be listed, if any;
(f) make generally available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the 1933 Act no later than 45 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 the registration statement, which earnings statement shall cover said 12-month period, which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on such forms and reports as the Company may be required to file under the Exchange Act and otherwise complies with Rule 158 under the 1933 Act as soon as feasible;
(g) notify the 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, and make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment;
(h) if requested by the managing underwriter or underwriters, 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, the purchase price being paid therefor by such underwriter or underwriters and any other terms of the underwritten offering of such Registrable Securities (excluding, however, information with respect to the number of Registrable Securities being sold to such underwriter or underwriters by the Holder), and promptly make all required filings of such prospectus supplement or post-effective amendment;
(i) as promptly as practicable after filing with the Commission of any document which is incorporated by reference into a registration statement, deliver to the Holder as many copies of that document as may be reasonably requested by the Holder;
(j) on or prior to the date on which the registration statement is declared effective, use reasonable diligence to register or qualify, and cooperate with the Holder the underwriter or underwriters, if any, and their counsel, in connection with the registration or qualification of the Registrable Securities covered by the registration statement for offer and sale under the securities laws or blue sky laws of such jurisdictions as any Selling Shareholder each state and any underwriter other jurisdiction of the securities being sold by United States as the Holder or underwriter reasonably requests in writing, to use reasonable diligence to keep each such Selling Shareholder shall reasonably requestregistration or qualification effective, including through new filings, or amendments or renewals, during the period such registration statement is required to be kept effective and take to do any and all other action which may be reasonably acts or things necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in all such jurisdictions of the Registrable Securities owned covered by such Selling Shareholder, except the applicable registration statement; 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 is not then so qualified or to take any action which would not but for the requirements of this clause (iv) be obligated subject it to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject; and provided, further, however, that while it is the present intention of the Holder to cooperate with the Company to keep the costs of compliance with state blue sky laws to a minimum, the Holder shall have the right to require compliance by the Company with the blue sky laws of as many states as the managing underwriter deems reasonably necessary in its good faith judgment to realize the maximum possible value for the Registrable Securities included in such registration statement;
(vk) cooperate with the Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, may request, subject to the underwriters' obligation to return any certificates representing securities not sold;
(l) use reasonable best efforts diligence 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 reasonable best efforts to cause such Registrable Securities covered by such the registration statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the Selling Shareholder(s) seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such securities;
(m) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other reasonable actions as the Holder or the underwriters retained by the Holder participating in an underwritten public offering, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(viin) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholderthe Holder, 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 Selling Shareholder 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 's officers, directors and employees to (x) supply make available for inspection and/or copying all information Records reasonably requested by any such Inspector in connection with such registration statement statement; and
(o) list such securities on or with a national securities exchange (which term shall include the NASDAQ National Market System) and (y) be reasonably available for due diligence discussions comply with all applicable exchange listing requirements and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Companyrules and regulations thereof;
(ixp) promptly notify use reasonable diligence to obtain a "cold comfort" letter from the Company's independent public accountants in writing each Selling Shareholder customary form and the underwriters, if any, covering such matters of the following events:
(A) the filing of the type customarily covered by cold comfort letters covering registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment statements similar to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names issue as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as Holder reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companyrequests. The Company may require each Selling Shareholder and each underwriterHolder, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening occurrence of any event of the kind described in subsection (d) of this Section 5.6(a)(x)3.1, such Selling Shareholder shall will forthwith discontinue such Selling Shareholder’s disposition of the Registrable Securities pursuant to until the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s Holder's receipt of the copies of the supplemented or amended prospectus contemplated by subsection (d) of this Section 5.6(a)(x3.1 and copies of any additional or supplemental filings which are incorporated by reference in the prospectus, or until it is advised in writing (the "Advice") and, if by the Company that the use of the prospectus may be resumed. If so directed by the Company, the Holder shall deliver to the Company, Company (at the Company’s 's expense, ) all copiescopies in its possession or control, other than permanent file copies, copies then in such Selling Shareholder’s possession the Holder's possession, of the prospectus current at the time of receipt of such notice relating to covering such Registrable Securities. In the event the Company shall give any such notice, any applicable one hundred twenty the time periods mentioned in subsection (120b) day period during which such registration statement must remain effective pursuant to of this Agreement Section 3.1 shall be extended by the number of days during the period from and including the date of the giving of a written such notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all each seller of Registrable Securities covered by such Selling Shareholders 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 SEC.
contemplated by subsection (d) With a view to making available of this Section 3.1 hereof or the Advice. If such registration statement refers to the holders Holder by name or otherwise as the holder of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company then the Holder shall have the right to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
require (i) make the insertion therein of language, in form and keep public information available, substance satisfactory to the Holder to the effect that the holding by such Holder of such securities is not to be construed as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required recommendation of such Holder of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and investment quality of the Exchange Act, a copy of Company's securities covered thereby and that such holding does not imply that the most recent annual or quarterly report Holder will assist in meeting any future financial requirements of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(eii) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders such reference to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could Holder by name or otherwise then be Transferred if they were already outstanding), as contemplated is not required by the Charter; provided, that Securities Act or any similar federal statute then in such eventforce, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, deletion of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyreference to such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Us Legal Support Inc), Registration Rights Agreement (Us Legal Support Inc)
Registration Procedures. (a) If and whenever Whenever Shareholders request that any Registrable Securities be registered pursuant to Section 5.1 or 5.2 hereof, the Company is required will, subject to the provisions of such Sections, use its reasonable best efforts to effect the registration and the sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided quickly as practicable, and in Section 5.1, Section 5.2 and Section 5.3 the connection with any such request:
(a) The Company shall will as expeditiously as reasonably possible:
(i) possible prepare and file with the SEC a registration statement on any form selected by counsel for the Company and which form shall be available for the sale of the Registrable Securities to effect such registration be registered thereunder in accordance with the intended method of distribution thereof, and thereafter use its reasonable best efforts to cause such filed registration statement to become and remain effective pursuant for a period of not less than 180 days (or such shorter period in which all of the Registrable Securities of the Holders included in such registration statement shall have actually been sold thereunder).
(b) The Company will, if requested, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish to each Shareholder and each underwriter, if any, of the terms Registrable Securities covered by such registration statement copies of this Agreement; such registration statement as proposed to be filed, and thereafter the Company will furnish to such Shareholder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Shareholder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Shareholder. Each Shareholder shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Shareholder and the Company shall use its reasonable best efforts to comply with such request, provided, however, that the Company may discontinue shall not have any registration obligation to so modify any information if so doing would cause the prospectus to contain an untrue statement of its securities which are a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not Registrable Securities at any time prior to misleading.
(c) After the effective date filing of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto)statement, the Company will furnish to (i) cause the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed related prospectus to be filed, which documents will be subject to the review and comment of such counselsupplemented by any required prospectus supplement, and such review and comment as so supplemented to be conducted with reasonable promptness and filed pursuant to Rule 424 under the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) objectAct, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective 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, in each case statement during the applicable period in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained sellers thereof set forth in such registration statement (including each preliminary or supplement to such prospectus and any summary prospectus(iii) and promptly notify each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the holding Registrable Securities owned covered by such Selling Shareholder;registration statement of any stop order issued or threatened by the SEC or any state securities commission under state blue sky laws and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(ivd) The Company will use its reasonable best efforts to (i) register or qualify such the Registrable 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 Shareholder and any underwriter of the securities being sold by holding such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by reasonably (in light of such Selling Shareholder, except that the Company shall not for any such purpose be required to 's intended plan of distribution) requests and (Aii) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Selling Shareholder(s) thereof such Shareholder to consummate the disposition of the Registrable Securities owned by such Shareholder; provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(e) The Company will immediately notify each Shareholder holding such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment.
(f) In connection with (i) any Demand Registration requested by the DLJ Entities or their Permitted Transferees or (ii) any registration of Registrable Securities pursuant to this Article 5 the Company shall appoint the underwriter or underwriters chosen by DLJMB. The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities;
(vii) , including the engagement of a "qualified independent underwriter" in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:the qualification of the underwriting arrangements with the NASD.
(Ag) an opinion Upon execution of counsel for confidentiality agreements in form and substance reasonably satisfactory to the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly Company will make available for inspection by any Selling Shareholder, Shareholder and any underwriter participating in any disposition pursuant to any a registration statement, statement being filed by the Company pursuant to this Section 5.4 and any attorney, accountant or other agent or representative professional retained by any such Selling Shareholder or underwriter (collectively, the “"Inspectors”"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”), ") as shall be reasonably necessary to enable them to exercise their due diligence responsibilityrequested by any such Person, and cause the Company’s 's officers, directors and employees to (x) supply all information reasonably requested by any such Inspector Inspectors in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;statement.
(ixh) promptly notify in writing The Company will furnish to each Selling such Shareholder and the underwritersto each such underwriter, if any, a signed counterpart, addressed to such underwriter and the participating Shareholders, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the following events:type customarily covered by opinions or comfort letters, as the case may be, as a majority of such Shareholders or the managing underwriter therefor reasonably requests.
(Ai) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the The Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SECSEC and the relevant state blue sky commissions, and make available to Selling Shareholdersits securityholders, as soon as reasonably practicable, an earnings statement of the Company covering the a period of at least twelve (12) months, but not more than eighteen (18) 12 months, beginning with the first day of the Company’s first full quarter within three months 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;Act.
(xiiij) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling such Shareholder and each underwriter, if any, to promptly furnish in writing to the Company in writing such information regarding each Selling Shareholder or underwriter and the distribution of such the Registrable Securities as the Company may from time to time reasonably request to complete or amend the and such other information as may be legally 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, 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 contained herein) by an issuer of common stock in such underwriting agreementsregistration.
(ck) Each Selling such Shareholder agrees that that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x)5.4(e) hereof, such Selling Shareholder shall will forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto covering such Registrable Securities until such Selling Shareholder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x5.4(e) hereof, and, if so directed by the Company, such Shareholder will deliver to the Company, at the Company’s expense, Company all copies, other than any permanent file copies, copies then in such Selling Shareholder’s possession 's possession, of the most recent 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 such notice, any applicable one hundred twenty (120) day the Company shall extend the period during which such registration statement must remain effective pursuant to this Agreement shall be extended maintained effective (including the period referred to in Section 5.4(a) hereof) by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in pursuant to Section 5.6(a)(x5.4(e) hereof to the date when all the Company shall make available to such Selling Shareholders shall receive such Shareholder a prospectus supplemented or amended prospectus and such prospectus shall have been filed to conform with the SECrequirements of Section 5.4(e) hereof.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(el) The Company shall will use its reasonable best efforts to take all action necessary list such Registrable Securities on any securities exchange on which the Common Stock is then listed or appropriate upon on NASDAQ if the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after Common Stock is then quoted on NASDAQ not later than the effective date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyregistration statement.
Appears in 1 contract
Registration Procedures. (a) If and whenever the Company HALIS is required to use reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.110.2, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleHALIS will promptly:
(ia) prepare and (in any event within sixty (60) days of the last date on which the holders of Registrable Securities may notify HALIS of their request to include their Registrable Securities in such registration in accordance herewith) file with the SEC a registration statement with respect to effect such registration Registrable Securities and thereafter use 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholderseffective;
(iib) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities and other securities covered by such registration statement, in each case statement until the earlier of such time as all of such Registrable Securities and securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement or the expiration of one hundred twenty (120) days after such registration statement becomes effective; and will furnish, upon request, to each such seller and each Requesting Holder prior to the filing thereof a copy of any amendment or supplement to such registration statement or prospectus and shall not file any such amendment or supplement to which any such seller or holder shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(iiic) furnish to each Selling Shareholder seller of such Registrable Securities and each underwriter, if any, of the securities being sold by such Selling Shareholder 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 included in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriterdocuments, if any, incorporated by reference in such registration statement or prospectus, and such other documents, as such seller or Requesting Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use 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 Shareholder and any underwriter the states of the securities being sold by such Selling Shareholder United States as each seller shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take do any and all other action acts and things which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter seller to consummate the disposition in such jurisdictions of the its Registrable Securities owned covered by such Selling Shareholderregistration statement, except that the Company HALIS 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 subsection (ivd) be obligated to be so qualified, (B) or to subject itself to taxation in any such jurisdiction jurisdiction, or (C) file a to consent general consent to service of process in any such jurisdiction;
(ve) use reasonable best efforts upon request, furnish to cause such each seller of Registrable Securities and each Requesting Holder a signed counterpart, addressed to be listed on each securities exchange on which similar securities issued by the Company are then listed andsuch seller and such holder, 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;
of (vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(Ai) an opinion of counsel for HALIS, dated the Companyeffective date of such registration statement (and, covering if such registration includes an underwritten public offering, dated the matters customarily covered in opinions requested in underwritten offerings date of the closing under the underwriting agreement), and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(Bii) a “"comfort” letter " letter, dated the effective date of such registration statement (orand, in if such registration includes 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. 72closing under the underwriting agreement), an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s HALIS'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 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 underwriters in underwritten public offerings of securities and, in the case of the accountants' letter, such other financial matters, as the principal underwriter for such sellers or such holders may reasonably request;
(viiif) promptly make available for inspection immediately notify each seller of Registrable Securities covered by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling ShareholderRequesting 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 the light of the circumstances then existing, andwhich untrue statement or omission requires amendment of the registration statement or supplementation of the prospectus, and at the request of any Selling Shareholdersuch seller or holder, promptly prepare and furnish to such seller and 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 registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit omits 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; provided, however, that each holder of Registrable Securities registered pursuant to such registration statement agrees that he or it will not sell any Registrable Securities pursuant to such registration statement during the time that HALIS is preparing and filing with the SEC a supplement to or an amendment of such prospectus or registration statement.
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiig) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholdersits securities holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day month of the Company’s first full fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderAct;
(xiiih) 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 Class P Shares;
(xiv) cooperate with the 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) 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 Selling Shareholders may request and keep available and make available to the Company’s maintained a transfer agent prior to and registrar for all Registrable Securities 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 certificatesstatement; and
(xvi) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable its best efforts to facilitate list all offeringsCommon Stock covered by such registration statement on each securities exchange on which any of the HALIS Common Stock is then listed or, including with respect to preparing marketing and offering materialsif HALIS Common Stock is not then quoted on NASDAQ or listed on any national securities exchange, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable use its best efforts to cooperate as reasonably requested have such HALIS Common Stock covered by such registration statement quoted on NASDAQ or, at the Selling Shareholders and the underwriters in the offeringoption of HALIS, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companylisted on a national securities exchange. The Company HALIS may require each Selling Shareholder and each underwriter, if any, seller of Registrable Securities as to which any registration is being effected to furnish the Company in writing HALIS such information regarding each Selling Shareholder or underwriter such seller and the distribution of such Registrable Securities securities as the Company HALIS may from time to time reasonably request to complete or amend the information in writing and as shall be 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 law or by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationtherewith.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 1 contract
Sources: Merger Agreement (Halis Inc)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the any registration of any Registrable Securities under the Securities 1933 Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall shall, as expeditiously as reasonably possible:
(ia) prepare Prepare and file with the SEC a Commission the requisite registration statement to effect such registration and thereafter use its commercially 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 shares of Registrable Securities (and, under the circumstances specified in Section 3 of this Agreement, its securities that are shares of Registrable Securities) at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) prepare notify each seller of Registrable Securities 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 other securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities 1933 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 request of any Selling Shareholder, promptly prepare and furnish file with the Commission such amendments and supplements to such seller a reasonable number of copies of a supplement to or an amendment of such registration statement and the prospectus used in connection therewith as may be necessary so that, as thereafter delivered to keep such registration statement effective and to comply with the provisions of the 1933 Act and the Exchange Act with respect to the purchasers disposition of all Registrable Securities covered by such registration statement until such time as all of such Registrable Securities has been disposed of in accordance with the method of disposition set forth in such registration statement;
(c) before filing any registration statement or prospectus or any amendments or supplements thereto, furnish to and afford the holders of the Registrable Securities, if requested in writing by the holders of the Registrable Securities, one firm of counsel for the holders of Registrable Securities designated by the holders of a majority of Registrable Securities to be included in the registration statement, (the “Holders Counsel”) a reasonable opportunity to review copies of all such prospectus documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed. The Company shall not include file any registration statement or prospectus or any amendments or supplements thereto in respect of which the Holders must be afforded an opportunity to review prior to the filing of such document, if the Holders of a majority of the shares of Registrable Securities covered by such registration statement, the Holders Counsel, shall reasonably object. Any registration statement, when declared effective by the Commission or when subsequently amended (by an amendment which is declared effective by the Commission) or any prospectus in the form included in the registration statement as declared effective by the Commission or when subsequently supplemented will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(xid) use its commercially reasonable best efforts to prevent, and obtain the prompt withdrawal of, of any order suspending the effectiveness of a registration statement, and in any event shall, within thirty (30) days of such cessation of effectiveness, use its commercially reasonable efforts to amend the registration statement in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional registration statement pursuant to Rule 415 covering all of the Registrable Securities and use its commercially reasonable efforts to cause the subsequent registration statement to be declared effective as soon as practicable after such filing and to remain effective as provided in this Agreement;
(e) furnish to each seller of Registrable Securities covered by such registration statement such number of copies of such drafts and final conformed versions of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits and any documents incorporated by reference), 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 1933 Act, in conformity with the requirements of the 1933 Act, and such other documents, as such seller may reasonably request in writing, provided, however, that the RTI Shareholders shall not distribute or otherwise use any preliminary prospectus in connection with any sale or distribution of the registered Registrable Securities;
(f) use its commercially reasonable efforts (i) to register or qualify all Registrable Securities under such other securities or blue sky laws of such states or other jurisdictions of the United States of America as the sellers of Registrable Securities covered by such registration statement shall reasonably request in writing, (ii) to keep such registration or qualification in effect for so long as such registration statement remains in effect, (iii) to prevent the issuance of any order suspending the effectiveness of a registration statement or of any order preventing or suspending the use of a prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, and, if any such order is issued, to use its commercially reasonable efforts to obtain the withdrawal of any such order at the earliest possible moment, and (iv) to take any other action that may be reasonably necessary or advisable to enable such sellers to consummate the disposition in such jurisdictions of the securities to be sold by such sellers, 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 Section 4.1(f) be obligated to be so qualified, to subject itself to taxation in such jurisdiction or to consent to general service of process in any such jurisdiction;
(g) use its commercially reasonable efforts to cause all Registrable Securities and other securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to the Company to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities in the manner set forth in the registration statement;
(xiih) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission and any other governmental agency or authority having jurisdiction over the offering, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities 1933 Act and Rule 158 promulgated thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities furnish to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent each seller of Registrable Securities at least ten days prior to the effectiveness filing thereof a copy of any amendment or supplement to such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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 statementprospectus.
(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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 1 contract
Sources: Registration Rights Agreement (Science Dynamics Corp)
Registration Procedures. (a) If and whenever In the case of each registration effected by the Company is required pursuant to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1this Agreement, Section 5.2 and Section 5.3 the Company shall keep each Holder advised in writing as expeditiously to the initiation of each registration and as reasonably possibleto the completion thereof. In connection with any such registration:
(i) The Company will, [***] after its receipt of the request for registration under Section 6(a)(i), prepare and file with the SEC a registration statement Registration Statement on Form S-3 or another appropriate Securities Act form reasonably acceptable to effect such registration the Holders, and thereafter use commercially reasonable 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 completion of the registration statement relating thereto; provided, further that within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;distribution contemplated thereby.
(ii) The Company will (i) promptly prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith each Registration Statement as may be necessary to keep such Registration Statement effective for as long as such registration statement is required to remain effective pursuant to the terms hereof, (ii) cause the prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act, and to (iii) comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities Registrable Securities covered by such registration statement, in each case Registration Statement during the applicable period in accordance with the terms intended methods of this Article V;disposition by the Holders set forth in such Registration Statement or supplement to the prospectus.
(iii) The Company will, [***] prior to filing a Registration Statement or prospectus or any amendment or supplement to such Registration Statement or prospectus, furnish to (i) each Selling Shareholder Holder of Registrable Securities covered by such Registration Statement, (ii) Holders’ Counsel and (iii) each underwriter of the Registrable Securities covered by such Registration Statement, copies of such Registration Statement and each underwriteramendment or supplement as proposed to be filed, together with any exhibits thereto, which documents will be subject to reasonable review and comment by each of the foregoing persons, and thereafter, furnish to such Holders, Holders’ Counsel and the underwriter(s), if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of Registration Statement, each amendment and supplement thereto (in each case including all exhibitsexhibits thereto and documents incorporated by reference therein), such number of copies of the prospectus contained included in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents or information as such Selling Shareholder and underwriterHolder, if any, Holders’ Counsel or the underwriter(s) may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;in accordance with the plan of distribution set forth in the prospectus included in the Registration Statement.
(iv) The Company shall furnish to each Holder a copy of all documents filed with and all correspondence from or to the SEC in connection with the offering of Registrable Securities.
(v) The Company will promptly notify each Holder of any stop order issued or threatened by the SEC and, if entered, use commercially reasonable best efforts to prevent the entry of such stop order or to remove it as soon as reasonably possible.
(vi) On or prior to the date on which the Registration Statement is declared effective, the Company shall 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 Shareholder Holder reasonably requests and any underwriter of use commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the securities being sold by such Selling Shareholder shall reasonably request, and take any other action period which may the Registration Statement is required to be reasonably necessary or advisable kept effective pursuant to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except terms hereof; provided that the Company shall will not for any such purpose be required to (Ai) 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 (iv) be obligated to be so qualifiede), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) file a general consent to general service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;.
(vii) in connection with an Underwritten OfferingThe Company will notify each Holder, obtain for each Selling Shareholder Holders’ Counsel and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viiiunderwriter(s) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information if requested by any such Inspector person) confirm such notice in connection with such registration statement and writing, (yi) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of when a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, 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;
, (Bii) of any request by the SEC or any other Government Entity federal or state governmental authority for amendments or supplements to the registration statement a Registration Statement or the prospectus or for additional information;
information to be included in any Registration Statement or prospectus or otherwise, (Ciii) of the issuance by the SEC any state securities commission or any other Government Entity regulatory authority of any stop order suspending the effectiveness qualification or exemption from qualification of any of the registration statement Registrable Securities under state securities or blue sky laws or the initiation of any proceedings by any Person for that purpose; and
, and (Div) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 that requires the making of any changes in a result of which, the Registration Statement or related prospectus included in such registration statement, as then in effect, includes an or any document incorporated or deemed to be incorporated by reference therein 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 in the Registration Statement and prospectus not misleading, misleading in light of the circumstances in which they were made; and, at the request of any Selling Shareholderas promptly as practicable thereafter, promptly prepare and file with the SEC 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 deliverable to the purchasers of such Registrable Securities, such prospectus shall will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(viii) The Company and the Holders will furnish customary closing certificates and other deliverables to the underwriter(s) (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities.
(ix) The Company shall use commercially reasonable efforts to cause all Registrable Securities registered pursuant to the terms hereof to be listed on each national securities exchange on which the ordinary shares of the Company are then listed.
(x) The Company shall use commercially reasonable efforts to cooperate and assist in obtaining of all necessary approvals from FINRA, if any.
(xi) The Company otherwise shall use its commercially reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 1 contract
Registration Procedures. (a) If and whenever the Company is required to use reasonable its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.12, Section 5.2 and Section 5.3 the Company shall Company, as expeditiously as reasonably possiblepossible and subject to the terms and conditions of Section 2, will:
(i) prepare and file with the SEC a Commission the requisite registration statement to effect such registration and thereafter use 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholderseffective;
(ii) permit any Holder which, in the reasonable judgment of the Holder, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder and its counsel should be included;
(iii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case statement until the earlier of such time as all of such securities have been disposed of in accordance with the terms intended methods of this Article Vdisposition by the seller or sellers thereof set forth in such registration statement or the expiration of 180 days after such registration statement becomes effective;
(iiiiv) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder Holders 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as the purchaser or any Holder of Registrable Securities to be sold under such Selling Shareholder and underwriter, if any, registration statement may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivv) use reasonable its best efforts to register or qualify such all Registrable Securities covered by such registration statement under such other United States state securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter Holder of the securities being Registrable Securities to be sold by such Selling Shareholder under registration statement shall reasonably request, to keep such registration or qualification in effect for so long as such registration remains in effect, and take any other action which may be reasonably necessary or advisable to enable the Holder of Registrable Securities to be sold under such Selling Shareholder and underwriter registration statement to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such Selling ShareholderHolder, except that the Company shall not for any such purpose be required to (Aa) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause subdivision (ivv) be obligated to be so qualified, or (Bb) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;.
(vi) use reasonable its best efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other United States state governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof Holder of Registrable Securities to be sold under such registration statement to consummate the intended disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties event 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 (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement statement, or the initiation of any proceedings by any Person for that purpose; and
(D) order suspending or preventing the receipt by the Company use of any notification with respect to the suspension of related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale under in any jurisdiction, the securities or blue sky laws Company shall use its best efforts promptly to obtain the withdrawal of any jurisdiction or the initiation or threat of any proceeding for such purposeorder;
(xviii) use it best efforts to furnish to the Holders of Registrable Securities to be sold under such registration statement (1) an opinion, dated the effective date of the registration statement, of the independent counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the Holders making such request, stating that such registration statement has become effective under the Securities Act and that (i) 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; (ii) the registration statement, the related prospectus, and each amendment or supplement thereto, comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements contained therein); (iii) such counsel has no reason to believe that either the registration statement or the prospectus, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (iv) the descriptions in the registration statement or the prospectus, or any amendment or supplement thereto, of all legal and governmental matters and contracts and other legal documents or instruments are accurate and fairly present the information required to be shown; and (v) such counsel does not know of any legal or governmental proceedings, pending or contemplated, required to be described in the registration statement or prospectus, or any amendment or supplement thereto, which are not described as required nor of any contracts or documents or instruments of a character required to be described in the registration statement or prospectus, or any amendment or supplement thereto or to be filed as exhibits to the registration statement which are not described and filed as required; and (2) a letter, dated the effective date of the registration statement, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and to the Holders making such request, 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. Such opinion of counsel shall additionally cover such legal matters with respect to the registration in respect of which such opinion is being given as the Holders may reasonably request. Such letter from the independent certified public accountants shall additionally cover such other financial matters (including information as to the period ending not more than five business days prior to the date of such letter) with respect to the registration in respect of which such letter is being given as the Holders may reasonably request.
(ix) immediately notify the Holders of Registrable Securities included in writing each Selling Shareholder, 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 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 misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of any Selling Shareholder, the Holders promptly prepare and furnish to such seller the Holders 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;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiix) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter 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, and not file any amendment or supplement to such registration statement or prospectus to which any Holder shall have reasonably objected in writing 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, having been furnished with a copy thereof at least two business days prior to the filing thereof;
(xiiixi) use its reasonable best efforts to assist Selling Shareholders who made provide a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to for all Registrable Securities covered by such registration statement not later than the effectiveness effective date of such registration statement a supply of such certificatesstatement; and
(xvxii) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable its best efforts to facilitate list all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in Registrable Securities covered by such registration statement on any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling securities exchange on which any of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million Securities are then listed.
(as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. b) The Company may require each Selling Shareholder and each underwriterHolder of Registrable Securities to be sold under such registration statement, if anyat the Company's expense, to furnish the Company in writing with such information and undertakings as it may reasonably request regarding each Selling Shareholder or underwriter such Holder 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 of Registrable Securities is to be made by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreementswriting.
(c) Each Selling Shareholder Holder, by execution of this Agreement, agrees (A) that upon receipt of any written notice from of the Company of the happening of any event of the kind described in subdivision (a)(ix) of this Section 5.6(a)(x)3, such Selling Shareholder shall Holder will forthwith discontinue such Selling Shareholder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto to such Registrable Securities until the receipt by such Selling Shareholder’s receipt Holder of the copies of the supplemented or amended prospectus contemplated by subdivision (a)(ix) of this Section 5.6(a)(x) 3 and, if so directed by the Company, will deliver to the Company, at the Company’s expense, Company all copies, copies other than permanent file copies, then in such Selling Shareholder’s possession of the Holders of the prospectus relating to such Registrable Securities current at the time of receipt of such notice and (B) that it will immediately notify the Company, at any time when a prospectus relating to the registration of such Registrable SecuritiesSecurities is required to be delivered under the Securities Act, of the happening of any event as a result of which information previously furnished by such Holder to the Company for inclusion in such prospectus contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made. In the event the Company or any such Holder shall give any such notice, any applicable one hundred twenty the period referred to in subdivision (120a)(iii) day period during which such registration statement must remain effective pursuant to of this Agreement Section 3 shall be extended by a number of days equal to the number of days during the period from and including the date of giving of a written notice regarding the happening pursuant to subdivision (a)(ix) of an event of the kind described in this Section 5.6(a)(x) 3 to and including the date when all such Selling Shareholders Holder shall receive such a have received the copies of the supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken subdivision (including through the Company’s transfer agenta)(ix) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately3.
Appears in 1 contract
Registration Procedures. (a) If and whenever the Company is required by ----------------------- the provisions of Article 2 or Article 3 to effect a registration of Registrable Securities under the Securities Act, the Company will use reasonable its best efforts to effect the registration and sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 5.1intended methods of disposition specified by the holders participating therein. Without limiting the foregoing, Section 5.2 and Section 5.3 the Company shall in each such case will, as expeditiously as reasonably possible:
(i) 4.1 In the case of a demand registration pursuant to Section 2.1, prepare and file with the SEC a Commission the requisite registration statement to effect such registration (including such audited financial statements as may be required by the Securities Act or the rules and thereafter regulations thereunder) and use reasonable its 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 are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that within a reasonable time as far in advance as practical before filing such -------- ------- registration statement or any amendments thereto (including prospectuses or supplements amendment thereto), the Company will furnish to counsel for the counsel selected by the Shareholders which are including requesting holders of Registrable Securities in such registration (“Selling Shareholders”) with copies of reasonably complete drafts of all such documents proposed to be filed, which documents will be subject to the review and comment of such counselfiled (including exhibits), and any such review and comment holder shall have the opportunity to be conducted with reasonable promptness object to any information pertaining solely to such holder that is contained therein and the Company shall not file any will make the corrections reasonably requested by such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates holder with respect to such Selling Shareholders;information prior to filing such registration statement or amendment.
(ii) prepare 4.2 Prepare and file with the SEC Commission such amendments and supplements to such registration statement and the any prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities included in such registration statement, in each case accordance with the intended methods of disposition thereof, until the earlier of (a) such time as all of the Registrable Securities included in such registration statement have been disposed of in accordance with the terms intended methods of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of disposition by the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained holder or holders thereof as set forth in such registration statement or (including each preliminary prospectus and any summary prospectusb) and each free writing prospectus 180 days (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriteror, if anythe filing was on a Form S-3 registration statement, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv365 days) use reasonable best efforts to register or qualify such Registrable Securities covered by after such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably requestbecomes effective; provided, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (orthat, in the case event the holder of any Registrable Securities is required to discontinue such Person which does not satisfy the conditions for receipt holder's disposition of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition Registrable Securities pursuant to any registration statementSection 4.11 hereof, and any attorneysuch 180-days (or 365 days, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as if applicable) shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any extended for such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject additional period as is equal to the execution by period during which such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory holders was required to the Company;discontinue such disposition.
(ix) promptly 4.3 Promptly notify in writing each Selling Shareholder requesting holder and the underwriter or underwriters, if any, of the following eventsof:
(Aa) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the when such registration statement or any Free Writing Prospectus utilized prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to the such registration statement or any post-effective amendment thereto, when the same has become effective;
(Bb) any written request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus or for additional informationprospectus;
(Cc) any notification received by the Company from the Commission regarding the Commission's initiation of any proceeding with respect to, or of the issuance by the SEC or any other Government Entity of Commission of, any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purposestatement; and
(Dd) 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.
4.4 Furnish to each holder of Registrable Securities included in such registration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto, and such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such seller's Registrable Securities, and such other documents, as such holder may reasonably request to facilitate the disposition of its Registrable Securities.
4.5 Use its best efforts to register or qualify all Registrable Securities included in such registration statement under the securities or "blue sky" laws of such states as each holder of Registrable Securities shall reasonably request within twenty (20) days following the original filing of such registration statement and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such holder to consummate the disposition in such states of the Registrable Securities owned by such holder, except that the Company shall not for any such purpose be required (a) to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this Section 4.5 be obligated to be so qualified, (b) to consent to general service of process in any such jurisdiction or (c) to subject itself to taxation in any such jurisdiction by reason of such registration or qualification.
4.6 Use its best efforts to cause all Registrable Securities included in such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable each holder thereof to consummate the initiation or threat disposition of any proceeding for such purpose;Registrable Securities.
(x) notify 4.7 Notify each holder whose Registrable Securities are included in writing each Selling Shareholdersuch registration 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, the which any prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, and at the request of any Selling Shareholder, 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 Purchaser 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 the light of the circumstances under which they were made, not misleading;.
(xi) 4.8 Otherwise use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Commission.
(xiii) use 4.9 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be cause all Registrable Securities included in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply to be listed, upon official notice of such certificates; and
(xv) in the case of an Underwritten Offeringissuance, cause the appropriate officers on any securities exchange or quotation system on which any of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, securities of the same class as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. Securities are then listed.
4.10 The Company may require each Selling Shareholder holder whose Registrable Securities are being registered to, and each underwritersuch holder, if anyas a condition to including Registrable Securities in such registration statement, to shall, furnish the Company in writing and the underwriters with such information and affidavits regarding each Selling Shareholder or underwriter such holder and the distribution of such Registrable Securities as the Company and the underwriters 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters writing in connection with such offering containing representationsregistration statement. At any time during the effectiveness of any registration statement covering Registrable Securities offered by a holder, warranties, indemnities and agreements customarily included (but not inconsistent with if such holder becomes aware of any change materially affecting the covenants and agreements accuracy of the Company information contained herein) by an issuer of common stock in such underwriting agreementsregistration statement or the prospectus (as then amended or supplemented) relating to such holder, it will immediately notify the Company of such change.
(c) Each Selling Shareholder agrees that upon 4.11 Upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x)4.7, such Selling Shareholder shall each holder will forthwith discontinue such Selling Shareholder’s holder's disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto to such Registrable Securities until such Selling Shareholder’s receipt of holder receives the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 4.7 and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, Company all copies, other than permanent file copies, then in such Selling Shareholder’s holder's possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In .
4.12 As used in this Agreement, the event term "best efforts" shall not mean efforts which require the Company shall give such noticeperforming party to do any act that is unreasonable under the circumstances or to expend any funds other than reasonable out-of- pocket expenses incurred in satisfying its obligations hereunder, any applicable one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) including but not limited to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus fees, expenses and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders disbursements of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form)its accountants, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports counsel and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registrationprofessionals.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 1 contract
Sources: Registration Rights Agreement (New Century Financial Corp)
Registration Procedures. (a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(i) prepare and file In connection with the SEC a filing by the Buyer of each registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective filed 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) , the Buyer shall furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies Stockholder a copy of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;.
(ivb) The Buyer shall use reasonable its best efforts to register or qualify such Registrable Securities the Purchase Price Shares covered by such each registration statement filed pursuant to this Article V under such other the securities laws or blue sky laws of such jurisdictions states as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder Stockholders shall reasonably request; PROVIDED, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling ShareholderHOWEVER, except that the Company Buyer shall not for any such purpose be required in connection with this paragraph (b) to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file execute a general consent to service of process in any such jurisdiction;.
(vc) use reasonable best efforts If the Buyer has delivered preliminary or final prospectuses to cause such Registrable the Stockholders and after having done so the prospectus is amended to comply with the requirements of the Securities to be listed on each securities exchange on which similar securities issued by Act, the Company are then listed Buyer shall promptly notify the Stockholders and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on requested by the New York Stock ExchangeBuyer, the American Stock Exchange Stockholders shall immediately cease making offers or sales of shares under the NASDAQ Stock Market;registration statement and return all prospectuses to the Buyer. The Buyer shall promptly provide the Stockholders with revised prospectuses and, following receipt of the revised prospectuses, the Stockholders shall be free to resume making offers and sales under the registration statement.
(vid) use reasonable best efforts to cause such Registrable Securities covered The Buyer shall pay the costs and expenses incurred by such it in complying with its obligations under this Article V, including all registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offeringand filing fees, obtain for each Selling Shareholder Nasdaq listing fees, fees and underwriter:
(A) an opinion expenses of counsel for the CompanyBuyer, covering and fees and expenses of accountants for the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwritersBuyer, and
but excluding (Bi) a “comfort” letter (orany brokerage fees, 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 selling commissions or underwriting discounts incurred by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector Stockholders in connection with such sales under registration statements and (ii) the fees and expenses of any counsel retained by the Stockholders.
(e) The Buyer shall have the right to select one or more nationally recognized underwriters to manage any offering under a registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be filed pursuant to Section 5.1 subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, approval of the following events:
(A) the filing Stockholders holding a majority of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, at any time when a prospectus relating thereto is required Purchase Price Shares requested 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus which approval 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;
(xi) use reasonable best efforts to preventunreasonably withheld; PROVIDED, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations that no approval of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders and Stockholders will be required if the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling 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; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized selected by the underwritersBuyer is Gold▇▇▇, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering▇▇chs & Co., marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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 statementMorg▇▇ ▇▇▇n▇▇▇ ▇▇ Deutsche Morg▇▇ ▇▇▇▇▇▇▇▇.
(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, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 1 contract
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1, Section 5.2 and Section 5.3 2 the Company shall as expeditiously as reasonably possiblewill:
(ia) prepare and file with the SEC a Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall furnish such documents to Franklin, on behalf of each Holder, and remain effective pursuant counsel to Franklin, which documents will be subject to the terms prompt review and comments of this AgreementFranklin and its respective counsel; and provided, further, 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(iib) notify Franklin, on behalf of the Holders, of the Commission's requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the terms intended method of this Article Vdistribution thereof;
(iiic) furnish furnish, without charge, to each Selling Shareholder and each underwriterFranklin, if any, on behalf of the securities being sold by such Selling Shareholder Holders 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder and underwriterFranklin, if any, on behalf of the Holders may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use its reasonable best efforts (i) 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 Shareholder and any underwriter States of the securities being sold by such Selling Shareholder shall United States of America where an exemption is not available and as Franklin, on behalf of the Holders may reasonably request, (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 may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling Shareholderthe Holders, 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 subsection (ivc), (x) be obligated to be so qualified, (B) subject itself qualified or to taxation consent to general service of process in any such jurisdiction or (Cy) file a general consent be subject to service of process in any such jurisdictionadditional taxes (other than de minimus amounts);
(ve) use 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 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 reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to enable the Selling Shareholder(s) thereof Company and counsel to Franklin to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixf) promptly notify in writing each Selling Shareholder and the underwritersFranklin, if any, on behalf of the following events:
Holders (Ai) the filing of the when such registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the such registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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 any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, andin the light of the circumstances under which they were made, and in the case of this clause (v), at the request of any Selling ShareholderFranklin, on behalf of the Holders promptly prepare and furnish to such seller Franklin, on behalf of the Holders, 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;
(xig) use its reasonable best efforts to preventcause all 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), and obtain if the withdrawal of, any order suspending the effectiveness listing of such registration statementRegistrable Securities is then permitted under the rules of such exchange;
(xiih) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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 promulgated thereunder, and promptly furnish to Franklin, on behalf of each Holder a copy of any amendment or supplement to such registration statement or prospectus;
(xiiii) deliver promptly to Franklin, on behalf of the Holders, copies of all correspondence between the Commission and the Company with respect to such registration statement;
(j) use its reasonable best efforts to assist Selling Shareholders who made a request to obtain the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery withdrawal of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to order suspending the effectiveness of such the registration statement a supply of such certificatesstatement; and
(xvk) in the case of an Underwritten Offeringprovide a transfer agent, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing registrar and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of CUSIP number for the Registrable Securities; provided, that in Securities covered by a registration statement no later than the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Companyeffective date thereof. The Company may require Franklin, on behalf of each Selling Shareholder and each underwriter, if any, Holder to furnish the Company in writing such information regarding each Selling Shareholder or underwriter such Holder and the distribution of such the Registrable Securities as the Company may from time to time reasonably request in writing and the Company shall not be obligated to complete or amend effect the information required by such registration statement.
(b) Without limiting of any Registrable Securities of the foregoing, in the event that the offering of Registrable Securities Holder unless such information regarding such Holder is provided to be made by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) . Each Selling Shareholder Holder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in paragraph (f)(iii) or (v) of this Section 5.6(a)(x)3, such Selling Shareholder shall forthwith Holder will, to the extent appropriate, discontinue such Selling Shareholder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until to such Selling Shareholder’s Registrable Securities until, in the case of paragraph (f)(v) of this Section 3, its receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (f)(v) of this Section 5.6(a)(x) 3 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 Shareholder’s possession its 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 the Company shall give such notice, If there is any applicable one hundred twenty (120) day period during which such registration statement must remain effective pursuant to discontinuance or suspension under this Agreement shall be extended by the number of days during the period from the date of giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form)paragraph, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under will extend the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement Effectiveness Period by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer period of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take discontinuance or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelysuspension.
Appears in 1 contract
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 5.1Sections 2.1 and 2.2 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possible:
(ia) prepare and file with the SEC a Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall as promptly as practicable furnish such documents to each Holder and remain effective pursuant each underwriter, if any, participating in the offering of the Registrable Securities and their respective counsel, which documents will be subject to the terms review and comments of this Agreementeach such Holder, each underwriter and their respective counsel; and provided, further, 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 within a reasonable time before filing ;
(b) notify each Holder of Registrable Securities covered by any registration statement of the Commission’s requests for amending or supplementing such registration statement or any amendments thereto (including prospectuses or supplements thereto), and the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counselprospectus, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement 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, in each case statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the terms intended method of this Article Vdistribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 365 days;
(iiic) furnish furnish, without charge, to each Selling Shareholder Holder of Registrable Securities covered by any registration statement and each underwriter, if any, of the securities being sold by such Selling Shareholder underwriter 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 each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Selling Shareholder Holders and underwriter, if any, such underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholderrequest;
(ivd) use its reasonable best efforts (i) to register or qualify all Registrable Securities and other securities covered by such registration statement under such securities or blue sky laws of such States of the United States of America where an exemption is not available and as 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 Shareholder and any managing underwriter of the securities being sold by such Selling Shareholder shall reasonably request, (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 may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter each Holder of Registrable Securities covered by a registration statement to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such Selling ShareholderHolders pursuant thereto, 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 subsection (ivd) be obligated to be so qualified, (B) subject itself qualified or to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction;
(ve) use 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 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 reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to enable the Selling Shareholder(s) thereof Company and counsel to any Holder of Registrable Securities covered by such registration statement to consummate the disposition of such Registrable Securities;
(viif) furnish to each Holder and each underwriter, if any, participating in connection with an Underwritten Offeringthe offering of the securities covered by such registration statement, obtain for each Selling Shareholder and underwriter:
a signed counterpart of (Ai) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(Bii) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s or any other entity’s financial statements included or incorporated by reference 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’ comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the legal opinion, such other legal matters;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ixg) promptly notify in writing each Selling Shareholder Holder and the underwriterseach managing underwriter, if any, participating in the offering of the following events:
securities covered by such registration statement (Ai) the filing of the when such registration statement, any amendment theretopre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the such registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
; (Bii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information;
; (Ciii) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
(Div) 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 any jurisdiction or the initiation or threat of any proceeding for such purpose;
; (xv) notify in writing each Selling Shareholder, 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, andin the light of the circumstances under which they were made, and in the case of this clause (v), at the request of any Selling Shareholder, Holder of Registrable Securities covered by such registration statement promptly prepare and furnish to such seller Holder and each managing underwriter, if any, participating in the offering of the Registrable Securities, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesHolders, 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; and (vi) at any time when the representations and warranties of the Company contemplated by Section 2.4(a) or (b) hereof cease to be true and correct;
(xi) use reasonable best efforts to prevent, and obtain the withdrawal of, any order suspending the effectiveness of such registration statement;
(xiih) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, 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 promulgated thereunder, and promptly furnish to each Holder of Registrable Securities covered by a registration statement a copy of any amendment or supplement to such registration statement or prospectus;
(xiiii) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement;
(j) (i) 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 Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of cause all Registrable Securities covered by such registration statement a supply to be listed on the NASDAQ “national market system” or the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such certificates; and
Registrable Securities is then permitted under the rules of such exchange, or (xvii) in the case of an Underwritten Offeringif no similar securities are then so listed, cause the appropriate officers of the Company to use its reasonable best efforts to facilitate (x) cause all offeringssuch Registrable Securities to be listed on a national securities exchange or (y) failing that, including secure designation of all such Registrable Securities as a NASDAQ “national market system security” within the meaning of Exchange Act Rule 11Aa2-1 of the Commission or (z) failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to preparing marketing and offering materialssuch shares with the National Association of Securities Dealers, preparing, making presentations at, and otherwise participating in any “road shows” Inc.;
(domestic and foreignk) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts deliver promptly to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected counsel to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder Holder and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to such registration statement;
(l) use its reasonable 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, no later than the effective date of the registration statement; and
(n) in connection with any underwritten public offering, make available its senior executive officers, directors and chairman and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s business) in their marketing of Registrable Securities. The Company may require each Holder of Registrable Securities covered by a registration statement to furnish the Company in writing such information regarding each Selling Shareholder or underwriter such Holder and the distribution of such the Registrable Securities of such Holder 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 foregoingin writing. Each Holder agrees that, in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company, 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 contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in paragraph (g)(iii) or (v) of this Section 5.6(a)(x)2.3, such Selling Shareholder shall forthwith Holder will, to the extent appropriate, discontinue such Selling Shareholder’s its disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until to such Selling Shareholder’s Registrable Securities until, in the case of paragraph (g)(v) of this Section 2.3, its receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (g)(v) of this Section 5.6(a)(x) 2.3 and, if so directed by the Company, will deliver to the Company, Company (at the Company’s expense, ) all copies, other than permanent file copies, then in such Selling Shareholder’s possession its possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice relating notice. If the disposition by a Holder of its securities is discontinued pursuant to such Registrable Securities. In the event foregoing sentence, the Company shall give such notice, any applicable one hundred twenty (120) day extend the period during which such of effectiveness of the registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from and including the date of the giving of a written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to and including the date when all such Selling Shareholders Holder shall receive such a have received copies of the supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
contemplated by paragraph (dg)(v) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirementsthis Section 2.3; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action so extend such period, the request pursuant to this Section 5.6(e) that would result in the failure following which such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, registration statement was filed shall not be counted for purposes of the Investor Shareholders, requests for registration to which the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyHolders are entitled pursuant to Section 2.1 hereof.
Appears in 1 contract
Registration Procedures. (a) If and whenever 7.1 In the case of each registration effected by the Company is required pursuant to this Agreement, the Company will keep each Holder advised in writing as to the initiation of each registration and as to the completion thereof. The Company agrees to use reasonable its best efforts to effect or cause such registration to permit the sale of the Registrable Securities covered thereby by the Holders thereof in accordance with the intended method or methods of distribution thereof described in such registration statement. In connection with any registration of any Registrable Securities under the Securities Act Securities, and except as otherwise provided in Section 5.1Article 6 hereof, Section 5.2 and Section 5.3 the Company shall as expeditiously as reasonably possibleshall, at its expense:
(ia) prepare and file with the SEC Commission a registration statement with respect to effect such registration Registrable Securities and thereafter use reasonable its best efforts to cause such registration statement filed to become and remain effective pursuant to effective;
(b) maintain the terms effectiveness of this Agreement; provided, however, such registration statement until the earlier of (A) five years after the date 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish filed pursuant to the counsel selected Section 2.1 is first declared effective by the Shareholders Commission, (B) the date on which are including Registrable Securities in such registration (“Selling Shareholders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in covered by a registration statement may be sold by the Holders pursuant to Rule 144(k) or (C) such registration) object, in writing, on time as all of the Registrable Securities have been publicly sold pursuant to a timely basis, based on any disclosure included therein that relates to such Selling Shareholdersregistration statement;
(iic) prepare and file with the SEC Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith included therein as may be necessary to keep effect and maintain the effectiveness of such registration statement effective as may be required by the applicable rules and to comply with the provisions regulations of the Securities Act with respect Commission and the instructions applicable to the disposition of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies form of such registration statement and furnish to the Holders of each amendment and supplement thereto (in each case including all exhibits), such number of the Registrable Securities covered thereby copies of any such supplement or amendment prior to this being used and filed with the prospectus contained Commission;
(d) promptly notify the Holders of Registrable Securities to be included in such a registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of hereunder, the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwritersales or placement agent, if any, may reasonably request in order to facilitate therefor and the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Shareholder and any managing underwriter of the securities being sold by such Selling Shareholder shall reasonably requestsold, and take any other action which may be reasonably necessary or advisable to enable confirm such Selling Shareholder and underwriter to consummate the disposition advice in such jurisdictions of the Registrable Securities owned by such Selling Shareholderwriting, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by 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 Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus included therein or any prospectus amendment or supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewithhas been filed, and, with respect to the such registration statement or any post-effective amendment theretoamendment, when the same has become effective;
, (B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) of the issuance by the SEC or any other Government Entity Commission of any stop order suspending the effectiveness of the such registration statement or the initiation of any proceedings by any Person for that purpose; and
, (DC) 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 or (xD) notify in writing each Selling Shareholderif, to the Company’s knowledge, it shall be the case, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery thatthat such registration statement or prospectus, or upon any document incorporated by reference in any of the happening of any event as a result of whichforegoing, 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 misleadingmisleading in light of the circumstances then existing;
(e) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement or any post-effective amendment thereto or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction at the earliest practicable date;
(f) furnish to each Holder of Registrable Securities to be included in such registration statement hereunder, each placement or sales agent, if any, therefor and each underwriter, if any, thereof a conformed copy of such registration statement, each such amendment and supplement thereto (in each case excluding all exhibits and documents incorporated by reference) and such number of copies of the registration statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such holder, agent or underwriter, as the case may be) of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the Securities Act, as such Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder sold by such agent or underwritten by such underwriter and to permit such Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act;
(g) use its best efforts to (A) register or qualify the Registrable Securities to be included in such registration statement under such other securities laws or blue sky laws of such states of the United States or the District of Columbia to be designated by the Holders of a majority of such Registrable Securities participating in such registration and each placement or sales agent, if any, therefor and underwriter, if any, thereof, as any Holder and each underwriter, if any, of the securities being sold shall reasonably request (provided, that the Company shall not be required to use its best efforts to register or qualify the Registrable Securities in more than 15 such jurisdictions unless the expenses thereof are borne by the Holders requesting such efforts), (B) keep such registrations or qualifications in effect and comply with such laws at all times during the period described in Section 7.1(b) above and (C) take any and all such actions as may be reasonably necessary or advisable to enable such Holder, agent, if any, and underwriter to consummate the disposition in such jurisdictions of such Registrable Securities; provided, however, that in order to fulfill the foregoing obligations under this Section 7.1(g), the Company shall not (unless otherwise required to do so in any jurisdiction) be required to (1) qualify generally to do business as a foreign company or a broker-dealer, (2) execute a general consent to service of process or (3) subject itself to taxation; and
(h) furnish, at the request of any Selling Shareholdera majority of the Holders participating in the registration, promptly prepare and furnish to on the date that 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 Registrable Securities are delivered to the purchasers underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and if permitted by applicable accounting standards, to the Holders requesting registration of Registrable Securities.
7.2 The Company may require each Holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Holder and such Holder’s method of distribution of such Registrable Securities as the Company may from time to time reasonably request in writing. Each such Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by such Holder to the Company or of the occurrence of any event in either case as a result of which any prospectus relating to such registration contains or would contain an untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omits to state any material fact regarding such Holder or the distribution of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Holder or the distribution of such Registrable Securities, such prospectus shall not include an untrue statement of or a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in light of the circumstances then existing.
(xi) use reasonable best efforts to prevent, and obtain 7.3 Each of the withdrawal of, any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to Holders will comply with all applicable rules and regulations of the SEC, and make available to Selling Shareholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the 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) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) in the case of an Underwritten Offering, cause the appropriate officers of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their reasonable best efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling disposition of the Registrable Securities; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling 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, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters included in connection with such offering 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 such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) and, if so directed filed by the Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoing, the Company shall comply with all applicable securities or other laws in connection with the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediately
Appears in 1 contract
Sources: Registration Rights Agreement (Technology Visions Group Inc)
Registration Procedures. In connection with registrations under SECTIONS 2 and 3 hereof, and subject to the terms and conditions contained therein, IPG shall (a) If and whenever the Company is required to use reasonable its best efforts to effect prepare and file with the registration of any Registrable Securities under the Securities Act Commission as provided in Section 5.1, Section 5.2 and Section 5.3 the Company shall as expeditiously soon as reasonably possible:
practicable, a registration statement with respect to the Registrable Common and use its best efforts to cause such registration to promptly become and remain effective for a period of at least 180 days (ior such shorter period during which Stockholder shall have sold all Registrable Common which it requested to be registered); provided, however, that such 180-day period shall be extended for a period equal to the period that the Stockholder agrees to refrain from selling any securities included in such registration in accordance with SECTION 8 hereof; (b) prepare and file with the SEC a registration statement to effect Commission such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; 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 within a reasonable time before filing such registration statement or any amendments thereto (including prospectuses or supplements thereto), the Company will furnish to the counsel selected by the Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”post-effective amendments) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel, and such review and comment to be conducted with reasonable promptness and the Company shall not file any such documents to which the Selling Shareholders (representing a majority of the Registrable Securities included in such registration) object, in writing, on a timely basis, based on any disclosure included therein that relates to such Selling Shareholders;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and supplements to the related prospectus used in connection therewith as may be necessary to keep appropriately reflect the plan of distribution of the securities registered thereunder until the completion of the distribution contemplated by such registration statement effective and or for so long thereafter as a dealer is required by law to comply deliver a prospectus in connection with the provisions offer and sale of the Securities Act with respect to the disposition shares of all securities covered by such registration statement, in each case in accordance with the terms of this Article V;
(iii) furnish to each Selling Shareholder and each underwriter, if any, of the securities being sold by such Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholder;
(iv) use reasonable best efforts to register or qualify such Registrable Securities Common covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions and/or as any Selling Shareholder and any underwriter of the securities being sold by such Selling Shareholder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Shareholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholder, except so that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by neither such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable nor the Selling Shareholder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Shareholder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Shareholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Shareholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Shareholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to (x) supply all information requested by any such Inspector in connection with such registration statement and (y) be reasonably available for due diligence discussions and sessions (taking into account the Company’s business needs); provided, however, that, the disclosure of such Records may be subject to the execution by such Selling Shareholder or other Inspector of a customary confidentiality agreement in a form which is reasonably satisfactory to the Company;
(ix) promptly notify in writing each Selling Shareholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Government Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Government Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify in writing each Selling Shareholder, 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 Shareholder, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
misleading and so that such registration statement and the related prospectus will otherwise comply with applicable legal requirements; (xic) provide to the Stockholder and its counsel an opportunity to review and provide comments with respect to such registration statement (and any post-effective amendment thereto) prior to such registration statement (or post-effective amendment) becoming effective; (d) use reasonable its best efforts to preventregister and qualify the Registrable Common covered by such registration statement under applicable securities or "Blue Sky" laws of Georgia for the distribution of the Registrable Common; (e) take such other actions as are reasonable and necessary to comply with the requirements of the Securities Act; (f) furnish such number of prospectuses (including preliminary prospectuses) and documents incident thereto as Stockholder from time to time may reasonably request; (g) provide to Stockholder, and to any attorney, accountant or other agent retained by the Stockholder or managing underwriter, reasonable access to appropriate officers and directors of IPG to ask questions and to obtain information reasonably requested by the withdrawal ofStockholder, managing underwriter, attorney, accountant or other agent in connection with such registration statement or any amendment thereto; PROVIDED, HOWEVER, that (i) in connection with any such access or request, any such requesting persons shall cooperate to the extent reasonably practicable to minimize any disruption to the operation by IPG of its business and (ii) any records, information or documents shall be kept confidential by such requesting persons, unless (A) such records, information or documents are in the public domain or otherwise publicly available or (B) disclosure of such records, information or documents is required by court or administrative order or by applicable law (including, without limitation, the Securities Act); (h) notify each Stockholder and any managing underwriters participating in the distribution pursuant to such registration statement promptly (i) when IPG is informed that such registration statement or any post-effective amendment to such registration statement becomes effective, (ii) of any request by the Commission for an amendment or any supplement to such registration statement or any related prospectus, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement;
statement or of any order preventing or suspending the use of any related prospectus or the initiation or threat of any proceeding for that purpose, (xiiiv) of the suspension of the qualification of any shares of Registrable Common included in such registration statement for sale in any jurisdiction or the initiation or threat of a proceeding for that purpose, (v) of any determination by IPG that any event has occurred which makes untrue any statement of a material fact made in such registration statement or any related prospectus or which requires the making of a change in such registration statement or any related prospectus in order that the same 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 not misleading and (vi) of the completion of the distribution contemplated by such registration statement if it relates to an offering by IPG; (i) in the event of the issuance of any stop order suspending the effectiveness of such registration statement or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any shares of Registrable Common included in such registration statement for sale in any jurisdiction, use its best efforts to obtain its withdrawal; (j) otherwise use reasonable its best efforts to comply with all applicable rules and regulations of the SECCommission, and make available to Selling Shareholdersits security holders, as soon as reasonably practicable, but not later than fifteen months after the effective date of such registration statement, an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, months beginning with the first day of the Company’s first full fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
Act; (xiiik) use its reasonable best efforts diligence to assist Selling Shareholders who made a request to the Company to provide for a third party “market maker” for the Class P Shares;
(xiv) cooperate with the Selling Shareholders and the managing underwriter to facilitate the timely preparation and delivery cause all shares of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be Registrable Common included in such denominations and registered in such names as the managing underwriter or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply to be listed on the Securities exchange (including, for this purpose, the New York Stock Exchange) or such exchange which the Common Stock is then listed at the initiation of such certificatesIPG; and
(xv1) use reasonable diligence to obtain an opinion from legal counsel (which may include the General Counsel of IPG) in the case of an Underwritten Offering, cause the appropriate officers customary form and covering such matters of the Company to use reasonable best efforts to facilitate all offerings, including with respect to preparing marketing and offering materials, preparing, making presentations at, and otherwise participating in any “road shows” (domestic and foreign) and analysts and rating agencies calls and meetings, type customarily covered by opinions as the case may be, and other information meetings and customary marketing activities organized by the underwriters, and otherwise using their 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; provided, that in the case of an Underwritten Offering involving anticipated gross proceeds of at least $500 million (as determined in good faith by the Requesting Shareholders (or the Demand Shareholders who have elected to effect an Underwritten Offering pursuant to the Shelf Registration Statement)), the reference to “the appropriate officers” shall be deemed to include the Chief Executive Officer and the President of the Company. The Company may require each Selling Shareholder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Shareholder or underwriter may reasonably request; (m) provide a transfer agent and the distribution of registrar for all such Registrable Securities as Common not later than the Company may from time to time reasonably request to complete or amend the information required by effective date of such registration statement.
; (bn) 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, if requested by the underwriter, shall enter into such customary agreements (including an underwriting agreement with a managing underwriter in customary form) as the underwriters, if any, may reasonably request in order to expedite or underwriters in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with facilitate the covenants and agreements of the Company contained herein) by an issuer of common stock in such underwriting agreements.
(c) Each Selling Shareholder agrees that upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 5.6(a)(x), such Selling Shareholder shall forthwith discontinue such Selling Shareholder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(x) 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 Shareholder’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 one hundred twenty (120) 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 written notice regarding the happening of an event of the kind described in Section 5.6(a)(x) to the date when all such Selling Shareholders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
(d) With a view to making available to the holders shares of Registrable Securities the benefits of Rule 144 under the Securities Act Common; and any other rule or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3 (or any successor form), the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(iio) use reasonable best efforts diligence to file with obtain consents to the SEC use of financial statements and a "comfort letter" from IPG's independent public accountants in a timely manner all reports customary form and other documents required covering such matters of the Company under the Exchange Act, at any time after the Company has become subject to such reporting requirements; and
(iii) furnish to any holder so long type customarily covered by comfort letters as the holder owns Registrable Securitiesunderwriters, promptly upon if any, may reasonably request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act . As used in this SECTION 4 and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may request in connection with the sale of Registrable Securities without registration.
(e) The Company shall use its reasonable best efforts to take all action necessary or appropriate upon the request of any Investor Shareholder to ensure that Class A Shareholders are, from and after the date hereof, able to convert their Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter, and shall not take or cause to be taken (including through the Company’s transfer agent) any action inconsistent with the foregoing. Without limiting the generality of the foregoingelsewhere herein, the Company shall comply with all applicable securities or other laws in connection with term "underwriters" does not include the foregoing, and take all reasonable action necessary or appropriate to restructure the Shares at the request of the Investor Shareholders holding a majority of the Total Voting Power held by the Investor Shareholders at such time in the event that any applicable law adversely affects the ability of Class A Shareholders to convert Class A Shares into Class P Shares in a timely manner in order to permit the timely Transfer of such Class P Shares (to the extent Class P Shares could otherwise then be Transferred if they were already outstanding), as contemplated by the Charter; provided, that in such event, the Company shall not be required to take any action pursuant to this Section 5.6(e) that would result in the failure following such restructuring to preserve in all material respects the economic and other rights (including conversion, Transfer, distribution, and governance rights as set forth in the Charter, the Bylaws and this Agreement) and characteristics and tax treatment, including on a relative basis, of the Investor Shareholders, the Class A Shares, the Class B Shares, the Class C Shares and the Class P Shares, as they exist immediatelyStockholder.
Appears in 1 contract
Sources: Registration Rights Agreement (Intertape Polymer Group Inc)